LETTER TO WILLIAM WEBSTER FROM CHARLES Z. WICK

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90G01353R000600070014-8
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 153
• Document Creation Date: December 23, 2016
• Document Release Date: April 2, 2013
• Sequence Number: 14
• Publication Date: June 24, 1988
• Content Type: LETTER

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THE FOLLOWING DOCUMENTS
ARE ATTACHED:
(Please do not remove)
OcA 2.
SUBJECT:
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ROUTING SUP
TO:
ACTION
INFO
DATE
INITIAL
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DCI
X
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DDCI
3
EXDIR
4
D/ICS
5
DDI
6
DDA
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DDO
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DDS&T
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Chm/NIC
10
GC
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IG
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Compt
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D/OCA
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D/PAO
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D/PERS
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x Staff
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E K
'1U---
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SUSPENSE
Date
Remarks
STAT
Executi4e Secretary
30 Jun '88
Date
3637 ()"11
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? Information
Agency
,
I
88-2648X
...,???=?????=????? USIA
Washfriater, C 2054:
June 24, 1988
Dear Bill:
Enclosed for your information is a copy of an article on your
June 14 speech before the House Foreign Affairs Committee, as
carried on our Wireless File the same day.
This article was transmitted to 206 posts in 127 countries. It
will be translated where appropriate and released to the media
in each country. Thank you for this contribution to our public
affairs efforts overseas.
Best regards.
The Honorable
William Webster
Director
Central Intelligence Agency
Sincerely,
Charles Z. Wick
Director
DCA
EL2.0
ALG
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USIA WIRELESS FILE
THIS IS THE "HOUSEWIRE," THE CENTRAL EDITION OF THE USIA WIRELESS
FILE. IT IS PREPARED DAILY BY THE AGENCY'S PRESS AND PUBLICATIONS
SERVICE. ARTICLES FROM THE HOUSEWIRE ARE COMBINED WITH OTHERS OF
SPECIAL REGIONAL INTEREST TO FORM THE FIVE REGIONAL EDITIONS --
AFRICA, EAST ASIA/PACIFIC, EUROPE, LATIN AMERICA, NEAR EAST/SOUTH
ASIA -- THAT ARE TRANSMITTED OVERSEAS.
TUESDAY, JUNE 14, 1988 PAGE
U.S. TRADE DEFICIT DROPS IN APRIL AS IMPORTS FALL
(New and corr. version GLE201, "U.S. Trade Deficit...")
BAKER RESIGNS WHITE HOUSE POST; DUBERSTEIN NAMED SUCCESSOR
(Article on Reagan, Fitzwater comments)
SKILLED STRATEGIST ASSUMES NEW DUTIES AT WHITE HOUSE
(Profile: Kenneth Duberstein, White House chief of staff)
REALISTIC APPROACH TO SOVIETS NEEDED, DUKAKIS SAYS
(Article on Dukakis remarks to Atlantic Council, Q-and-A)
U.S. SAYS POOR COUNTRIES TO GET SPECIAL SUMMIT FOCUS
(Article on Wallis briefing)
U.S. SEEKS FURTHER PROGRESS IN ECONOMIC COORDINATION
(Article on Mulford-Wallis briefing on Toronto Summit)
REAGAN PRAISES ITALY'S ROLE IN NATO
(Article on White House briefing on Reagan-De Mita meeting)
SHULTZ PLEDGES CONTINUED U.S. SUPPORT FOR CONTRAS
(Article on Shultz meeting with resistance leaders)
AGRICULTURE HEAD SAYS DROUGHT WILL-NOT FORCE EMBARGO
(Article on testimony of Secretary Lyng)
PROSPECTS FOR BETTER SOVIET HUMAN RIGHTS "UNCERTAIN"
(Article on Reddaway at Atlantic Council)
KREMLIN SENDING MIXED SIGNALS TO EASTERN EUROPE
(Article on Rodman speech to Atlantic Council)
U.S. ARMS CONTROL EXPERT URGES PUSH FOR S.T.A.R.T.
(Article on Alton Frye at Atlantic Council seminar)
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REDUCTIONS IN SOVIET CONVENTIONAL FORCES WILL BE KEY
(Article on Galvin speech at Atlantic Council)
EXPERT SEES U.S.-SOVIET REGIONAL CONFLICTS DIMINISHING
(Article on Sonnenfeldt at Atlantic Council)
WINDOW OF OPPORTUNITY FOR U.S.-SOVIET EXCHANGES
(Article on Robison at Atlantic Council meeting)
DONORS REVIEW U.N. AID PROGRAM FOR AFGHANISTAN
(Article on U.N. meeting, Williamson remarks)
NASA COMPLETES FOURTH TEST FIRING OF SHUTTLE ROCKET
(Article on briefing by NASA, Thiokol officials)
SHULTZ SAYS FOUNDATION FOR EAST-WEST RELATIONS FORMED
(Article on Shultz remarks to Atlantic Council)
LEHMAN CALLS PROGNOSIS FOR EAST-WEST RELATIONS GOOD
(Article on remarks at Atlantic Council meeting)
U.S. REAFFIRMS NEED FOR EXPORT CONTROLS
(Article on Wendt remarks to Atlantic Council meeting)
GREENSPAN URGES ACTION ON BUDGET DEFICIT
(Article on Greenspan speech to Economic Club)
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STATE DEPARTMENT REPORT, TUESDAY, JUNE 14
(Iran-Iraq war, Israel/West Bank, Shultz/Egyptian
foreign minister, Pakistan) 50
DEFENSE DEPARTMENT REPORT, TUESDAY,_ JUNE 14
(Carlucci-Yazov meetings, Akhromeyev, Olympics security) 52
CONGRESSIONAL REPORT, TUESDAY, JUNE 14
(Covert activity bill) 55
JUNE 14 CONGRESSIONAL REVIEW
(Death penalty, Wright, anti-communist aid, SDI study)
NEWS ROUNDUP, TUESDAY, JUNE 14 (FS)
ADD NEWS ROUNDUP, JUNE 14 (FS)
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YEUTTER SEES SIGNIFICANT IMPROVEMENT IN U.S. TRADE
(Text: Yeutter statement on April trade deficit)
64
REAGAN SAYS U.S. SUPPORTS FREEDOM FOR BALTIC PEOPLE
(Text: presidential proclamation) 65
DUKAKIS CALLS FOR TOUGH, REALISTIC APPROACH TO SOVIET UNION
(Text: June 14 Atlantic Council speech) 67
U.S. MAY NEED BUDGET SURPLUS, GREENSPAN SAYS
(Text: Greenspan on current account, budget deficits) 74
AMERICAN REPUBLICS WIRELESS FILE LOG 82
AFRICA WIRELESS FILE LOG 85
EAST ASIA/PACIFIC WIRELESS FILE LOG 87
NEAR EAST/SOUTH ASIA WIRELESS FILE LOG 89
EUROPEAN WIRELESS FILE LOG 92
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ItGLP210 06/14/88
CONGRESSIONAL REPORT, TUESDAY, JUNE 14 (390)
(Covert activity bill)
ARMACOST, WEBSTER ASSAIL BILL ON COVERT REPORTING --
Under Secretary of State Michael Armacost and Central
Intelligence Agency Director 'William Webster toldthe House
Foreign Affairs Committee June 14 that a law requiring the
president to notify congressional leaders within 48 hours of
any covert intelligence operation would be both
unconstitutional and unwise.
Armacost told the committee that a bill under
consideration to mandate notifying the speaker of the House
and the Democratic and Republican leaders of the House and
Senate in that time limit is too rigid, and that President
Reagan's senior advisers would recommend a veto if the
measure were passed by the Congress.
"In our view, the...requirement may not be reasonable in
those very rare instances where extremely sensitive
operations require the tightest possible security to protect
the lives of U.S. and foreign nationals," Armacost said.
"It is possible that the success of the operation may
depend on the cooperation of a foreign government that has
conditioned its support on delaying notification of an
operation," Armacost declared. "The 1980 Iran rescue mission
and the role of the Canadian embassy in assisting our people
in Iran are specific cases where advance notification could
not be given.
"In addition," he continued, "the Justice Department has
concluded that the 48-hour requirement would infringe upon
the president's constitutional authority."
Webster also said the bill unnecessarily codifies
reporting procedures already in place at the White House.
"While a presidential directive is not the same as
legislation, I am not persuaded thatnew legislation at this
time is the best way to address the concerns that.members (of
Congress) have," he asserted.
Democratic Representative Lee Hamilton -- who chaired
the House Iran-contra investigating committee -- disagreed
sharply. He said that notifying a few key members of
Congress offers minimal chance of a damaging security leak.
"That risk appears to me to be extremely small,"
Hamilton said. "If this bill said that the president must
notify 535 members of the Congress, then I would agree with
you.
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"But, what you are saying, in effect, is that you don't
trust the leaders of the Congress," he said. "That is an
extraordinary claim.
"The benefit here outweighs what I see as the risks,"
Hamilton said.
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OCA 2132-88
14 June 1988
MEMORANDUM FOR THE RECORD
SUBJECT: Intelligence Oversight Legislation - DCI Appearance
Before the house Foreign Affairs Committee (HFAC)
1. On 14 June 1986, the Director appeared before HFAC to
testify on H.R. 3822, the Intelligence Oversight Bill. The
Director was accompanied by Nike Armacost, Under Secretary of
State for Political Affairs. Attached is a copy of the opening
statement by the Director and Mike Armacost. A transcript of the
hearing was taken. Members attending the hearing included Dante
Fascell, Lee Hamilton, William Broomfield, Stephen Solarz, Howard
Berman, henry Hyde, Jim Leach, Mel Levine, Ted Weiss, Doug
Bereuter, Robert Torricelli, James Bilbray, and Michael Dewine.
2. Most of the discussion in the hearing centered around the
requirement in the bill to notify Congress of a Finding within 48
hours. hamilton and the other Democrats completely rejected the
argument that the President needs flexibility to delay notice when
lives are at stake, or when a foreign power conditions its
cooperation on the promise that the President not inform Congress
of the operation. Hamilton argued that leadership of the Congress
could be trusted not to disclose operations where lives were at
stake and that it would be improper to succumb to the wishes of
other countries who seek to dictate our constitutional process.
The Republicans were just as united in contending that the 48-hour
provision was unconstitutional and would not give the President
the flexibility to act to prevent the substantial loss of American
lives. It appears that flembers have already made up their minds
on this issue, and the hearing did not result in Members changing
their view on this issue. However, it is significant that liberal
Republicans, such as Jim Leech, have come out in opposition to the
bill. This will make a veto override much harder.
3. There are several followup responses promised by the
Director. The Director stated he would provide the Committee
information on whether ESDDs are provided to the Intelligence
committee. The Director initially stated that NSDDs are provided
to the Intelligence committee, but he was challenged on this point
by Lee Hamilton. The Director also promised to provide the
committee our views on whether it is wise to have the President
sign Findings and transmit signed Findings to Congress. Finally,
the Director promised to submit for the record an answer on
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whether there has been any instance in which covert action
information had been leaked by the intelligence committees prior
to the initiation of the covert action. Solarz attempted, without
success, to extract a commitment from the Director to have the
Department of Justice (DoJ) provide the Committee its views on
whether the President would comply with the 48-hour notification
requirement if it were enacted into law. The Director referred
the Committee to a DoJ letter to the House Permanent Select
Committee on Intelligence (HPSCI) that toyched on this issue.
Members also indicated that they would submit additional questions
for the record.
4. Clark Clifford followed the Director and Mike Armacost
testifying strongly in favor of the 48-hour notification
requirement. Mr. Clifford recommended that the bill be amended to
impose criminal sanctions on officials who participate in a covert
action for which the required notice has not been given. Several
members indicated they would support such an amendment in the
Committee markup.
Legislation Division
Office of Congressional Affairs
Attachment
(Opening Statements)
Distribution:
Original - OCA/Leg/Subject File: Congressional Oversight
1 -F---]/Signer
1 - OCA/Registry
1 - D/OCA
1 - Counsel/DDO
1 - Executive Registry
OCA/Leg (23 June 1986)
STAT
STAT
STAT
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STATEMENT OF THE DIRECTOR OF CENTRAL INTELLIGENCE
BEFORE THE FOREIGN AFFAIRS COMITTEE
HOUSE OF REPRESENTATIVES
14 JUNE 1988
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MR. CHAIRMAN AND MEMBERS OF THE FOREIGN AFFAIRS COMMITTEE,
I AM PLEASED TO EE HERE TODAY TO SHARE SOME OF MY THOUGHTS ON
H.R. 3822, THE INTELLIGENCE OVERSIGHT ACT OF 1988. SINCE THIS IS
THE FIRST TIME I HAVE APPEARED BEFORE THIS COMMITTEE AS DIRECTOR
OF CENTRAL INTELLIGENCE, I ALSO WANT TO TAKE THIS OPPORTUNITY TO
PROVIDE YOU WITH MY VIEWS ON THE RELATIONSHIP BETWEEN THIS
COMMITTEE AND THE CIA.
THE VIEWS EXPRESSED IN THIS STATEMENT ON H.R. 3822 REFLECT
THE POSITION OF THE ADMINISTRATION. I DRAW YOUR ATTENTION AT THE
OUTSET TO THE ADMINISTRATION POSITION, AS CONVEYED TO CONGRESS IN
THE PRESIDENT'S LEGISLATIVE MESSAGE, 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.
MR. CHAIRMAN, MY TESTIMONY TODAY WILL BE THE THIRD TIME I HAVE
TESTIFIED ON INTELLIGENCE OVERSIGHT LEGISLATION. I APPEARED LAST
NCVEMEER BEFORE THE SENATE INTELLIGENCE COMMITTEE TO TESTIFY ON
SIMILAR LEGISLATION AND IN FEBRUARY BEFORE THE HOUSE INTELLIGENCE
COMMITTEE ON H.R. 3822. IN MY TESTIMONY BEFORE THOSE COMMITTEES,
I FOCUSED PRIMARILY ON WHETHER THE LEGISLATION WAS TRULY NECESSARY,
AND ON THE PRACTICAL IMPACT OF THE OVERSIGHT DILL ON THE
2
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INTELLIGENCE COMMUNITY. I INTEND TO ADDRESS BOTH POINTS IN MY
TESTIMONY TODAY ON THE HOUSE BILL.
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THE NEED FOR LEGISLATION
IN MY REMARKS BEFORE THE SENATE AND HOUSE INTELLIGENCE
COMMITTEES I QUESTIONED THE NEED FOR THIS TYPE OF LEGISLATION.
ALTHOUGH BOTH INTELLIGENCE COMMITTEES SUBSEQUENTLY DECIDED TO
RECOMMEND APPROVAL OF THE LEGISLATION, I STILL BELIEVE THAT THIS
LEGISLATION IS NOT A NECESSARY RESPONSE TO THE CONCERNS MEMBERS OF
THE CONGRESS HAVE EXPRESSED ABOUT THE OVERSIGHT OF COVERT ACTION.
AS YOU KNOW, THE PRESIDENT RECOGNIZED LAST YEAR THAT THERE WAS
ROOM FOR IMPROVEMENT IN THE WAY THE TWO BRANCHES WERE MEETING
THEIR RESPONSIBILITIES. As A RESULT, HE TOOK CONCRETE,
SUBSTANTIAL STEPS TO ESTALLISH IMPROVED PROCEDURES TO ENSURE THAT
CONGRESS IS GIVEN THE OPPORTUNITY TO PLAY ITS APPROPRIATE
OVERSIGHT ROLE. THESE NEW PROCEDURES, IN THE FORM OF A NATIONAL
SECURITY DECISION DIRECTIVE ON SPECIAL ACTIVITIES (NSDD-286), mucH
OF WHICH HAS BEEN DECLASSIFIED, CLARIFY THE RULES BY WHICH COVERT
ACTIONS ARE REVIEWED, APPROVED, AND REPORTED TO CONGRESS. IN
FACT, MANY OF THE PROPOSALS CONTAINED IN H.R. 3822 ARE ALREADY
CONTAINED IN NSDD-286. THIS CAN BE, ILLUSTRATED BY MAKING A FEW
COMPARISONS BETWEEN THE BILL AND THE PRESIDENTIAL DIRECTIVE.
--THE BILL REQUIRES THAT FINDINGS BE IN WRITING, CANNOT BE
3
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MADE RETROACTIVE, AND MUST BE CONSISTENT WITH EXISTING LAW.
SIMILAR REQUIREMENTS ARE CONTAINED IN THE NSDD.
--THE BILL MAKES CLEAR THAT A PRESIDENTIAL FINDING MUST BE
OBTAINED BEFORE ANY AGENCY OR DEPARTMENT CAN CONDUCT A COVERT
ACTION, THE PRESIDENTIAL DIRECTIVE AFFIRMS THIS PRINCIPLE.
--THE BILL REQUIRES THAT A PRESIDENTIAL FINDING SPECIFY THE
NAMES OF EACH DEPARTMENT OR AGENCY OF THE U.S. GOVERNMENT THAT
IS FUNDING OR PARTICIPATING IN A SIGNIFICANT WAY IN A COVERT
ACTION, AND WHETHER IT IS CONTEMPLATED THAT ANY THIRD PARTY
WILL BE USED TO FUND OR OTHERWISE PARTICIPATE IN A SIGNIFICANT
WAY IN THE COVERT ACTION. AGAIN, THE PRESIDENTIAL DIRECTIVE
CONTAINS THE SAME REQUIREMENT.
IT IS NOT SURPRISING OR COINCIDENTAL THAT PROVISIONS OF THE
BILL ARE SIMILAR TO THE PRESIDENTIAL DIRECTIVE. THE PROCEDURES
THE PRESIDENT HAS INSTALLED WERE DEVELOPED FOLLOWING CLOSE AND
PROLONGED CONSULTATION WITH MEMBERS AND STAFFS OF THE INTELLIGENCE
COMMITTEES.
?
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 SHOULD BE EMPLOYED ONLY IF IT IS CLEAR THAT
LI
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THERE IS A BASIC DEFICIENCY IN THE OVERSIGHT PROCESS. THAT IS
DOUBLY THE CASE WHEN THE LEGISLATIVE REMEDY PROPOSED RAISES
CONSTITUTIONAL ISSUES THAT THREATEN TO DIVIDE THE TWO BRANCHES IN
AN AREA WHERE EFFECTIVE WORK PLACES A PREMIUM ON COOPERATION.
THE IRAN/CONTRA MATTER, WHILE 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 WERE THE RESULT OF
OFFICIALS FAILING TO FOLLOW EXISTING PROCEDURES AND RULES. As YOU
MAY BE AWARE, I HAVE TAKEN STEPS WITHIN THE CIA TO DISCIPLINE
THOSE EMPLOYEES WHO FAILED TO FOLLOW CIA PROCEDURES OR WHO
TESTIFIED TO CONGRESS IN A MANNER THAT WAS NOT CANDID OR
COMPLETE. THOSE ACTIONS, TAKEN IN LIGHT OF THE REQUIREMENTS
DEFINED BY CURRENT STATUTE, IN MY VIEW HAVE ADEQUATELY ADDRESSED
THE PROBLEMS WE FOUND. SIMILARLY, TO THE EXTENT THAT THERE WERE
ANY PROCEDURAL SHORTCOMINGS DEMONSTRATED EY THE IRAN/CONTRA
MATTEk, THEY HAVE /ALREADY BEEN ADDRESSED EY THE NEW PRESIDENTIAL
DIRECTIVE WITHIN THE PRESENT STATUTORY FRAMEWORK.
I WOULD LIKE TO EMPHASIZE THAT ANY LEGISLATION THAT IS ENACTED
SHOULD NOT ADVERSELY AFFECT THE INTELLIGENCE COMMUNITY'S ABILITY
TO GO ITS JOE. IN THIS CONNECTION, MR. CHAIRMAN, THE BILL PASSED
BY THE SENATE IN MARCH AND THE BILL MARKED UP BY THE HOUSE
INTELLIGENCE COMMITTEE HAVE ADDRESSED CONSTRUCTIVELY SOME OF THE
IMPORTANT SUBSTANTIVE CONCERNS I AND OTHER ADMINISTRATION
5
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OFFICIALS RAISED WITH THE ORIGINAL SENATE BILL INTRODUCED IN THAT
BODY. DOTH THE HOUSE AND SENATE BILLS, FOR EXAMPLE, RECOGNIZE THE
NEED TO REPORT ON SPECIAL ACTIVITIES AND INTELLIGENCE COLLECTION
IN A MANNER CONSISTENT WITH DUE REGARD FOR THE PROTECTION OF
SENSITIVE INTELLIGENCE SOURCES AND METHODS. I AM ALSO PLEASED
THAT NEITHER BILL REQUIRES THAT THE FINDING SPECIFY THE IDENTITY
CF FOREIGN COUNTRIES ASSISTING THE AGENCY IN THE CONDUCT OF COVERT
ACTION. THESE IMPORTANT SAFEGUARDS WILL IN MY VIEW GC A LONG WAY
IN ASSURING FRIENDLY INTELLIGENCE SERVICES AND POTENTIAL AGENTS
THAT SOURCE-IDENTIFYING INFORMATION WILL NOT BE WIDELY
DISSEMINATED AND POSSIBLY COMPROMISED.
I AM ALSO VERY PLEASED WITH THE CHANGES IN THE CRGINAL HOUSE
VERSION OF THE BILL MADE BY THE HOUSE INTELLIGENCE COMMITTEE IN
RESPONSE TO CONCERNS I RAISED BEFORE THAT COMMITTEE. MY
RESERVATIONS REGARDED THE DEFINITION OF COVERT ACTION, THE
EXPENDITURE OF NON-APPROPRIATED FUNDS AND THE REPORTING OF THE
TRANSFER OF DEFENSE ARTICLES OR SERVICES. IN PARTICULAR, THE NEW
DEFINITION OF COVERT ACTION REMOVES MUCH OF THE AMBIGUITY OVER
WHAT CONSTITUTES A COVERT ACTION AND IS IN MY VIEW A DISTINCT
IMPROVEMENT OVER THE CURRENT DEFINITIONS.
PRIOR NOTICE OF SPECIAL ACTIVITIES
WHILE THE INTELLIGENCE COMMITTEES HAVE ADDRESSED SEVERAL
CONCERNS PREVIOUSLY RAISED IN MY TESTIMONY BEFORE THOSE
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COMMITTEES, THERE IS ONE AREA OF THE BILL THAT REMAINS
PARTICULARLY TROUBLESOME. THIS AREA OF DIFFICULTY INVOLVES THE
PROVISION OF THE BILL THAT REQUIRES NOTIFICATION OF A COVERT
ACTION TO CONGRESS, WITHOUT EXCEPTION, WITHIN 48 HOURS AFTER THE
SIGNING OF A FINDING. LAST SUMMER, THE DEPARTMENT OF JUSTICE
PROVIDED THE CONGRESS WITH ITS VIEWS ON THE CONSTITUTIONALITY OF
SUCH A PROVISION, SO I WILL NOT ADDRESS THAT ISSUE HERE. I HAVE
TWO SEPARATE CONCERNS ABOUT THIS PROVISION.
FIRST, THE FACT THAT THERE IS A SHARP DIFFERENCE OF
INTERPRETATION BETWEEN THE VIEW OF THE ADMINISTRATION AND THE
POSITION EMBODIED IN THIS 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 COOPERATION AND
TRUST THAT EFFECTIVE NATIONAL SECURITY POLICY REQUIRES.
SECOND, I BELIEVE THAT AS A PRACTICABLE MATTER ALLOWANCE MUST
BE 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. IN SUCH A RARE
CASE, THE SUCCESS OF AN OPERATION MAY DEPEND ON THE COOPERATION OF
A FOREIGN GOVERNMENT THAT HAS CONDITIONED ITS SUPPORT ON THE
PRESIDENT DELAYING CONGRESSIONAL NOTIFICATION UNTIL THE OPERATION
IS COMPLETED. AN INFLEXIBLE NOTIFICATION REQUIREMENT COULD FORCE
A PRESIDENT TO CHOOSE BETWEEN PROVIDING THE CONGRESSIONALLY
7
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REQUIRED NOTIFICATION WITHIN 48 HOURS AND JEOPARDIZING THE LIVES
OF INNOCENT AMERICANS, OR DELAYING THAT NOTIFICATION TO PROTECT
THOSE LIVES. 1 CAN UNDERSTAND WHY ANY PRESIDENT WOULD BE
RELUCTANT TO AGREE TO A LAW THAT WOULD REQUIRE SUCH CHOICES.
IT IS WORTHWHILE TO NOTE THAT 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 NECESSARY,
THE REASON FOR THAT DECISION WILL BE CONTINUALLY REASSESSED BY
RESPONSIBLE SENIOR OFFICERS OF SEVERAL AGENCIES OR DEPARTMENTS SO
THAT THE DELAY WILL BE AS SHORT AS POSSIBLE. I REPEAT, HOt.EVER,
THAT I CAN THINK OF FEW CIRCUMSTANCES THAT WOULD EVER NECESSITATE
SUCH EXTRAORDINARY STEPS.
IF THE COMMITTEE SHOULD NEVERTHELESS DECIDE THAT LEGISLATION
IS NECESSARY TO LIMIT THE PRESIDENT'S AUTHORITY TO DELAY
NOTIFICATION, I WOULD URGE MEMBERS TO GIVE SERIOUS CONSIDERATION
TO LANGUAGE CONTAINED IN A BILL PROPOSED BY RANKING MINORITY
MEMBER BROOMFIELD THAT WOULD ALLOW THE PRESIDENT TO DELAY
NOTIFICATION IF HE DETERMINES THAT AN EMERGENCY CONSTITUTING A
GRAVE AND IMMEDIATE THREAT TO THE NATIONAL SECURITY OF THE UNITED
STATES EXISTS. WHILE SUCH A STANDARD MAY NOT COVER ALL SITUATIONS
WHERE LIVES ARE AT STAKE, IT WOULD ALLOW THE PRESIDENT THE
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FLEXIBILITY TO DELAY NOTIFICATION IN CIRCUMSTANCES WHERE THE
GOVERNMENT FACES A GRAVE AND IMMEDIATE THREAT TO ITS SECURITY.
ACCESS BY FOREIGN AFFAIRS COMMITTEE TO INTELLIGENCE INFORMATION
ALTHOUGH NOT DIRECTLY RELEVANT TO THE LEGISLATION BEFORE THIS
COMMITTEE, I THOUGHT THIS WOULD BE AN APPROPRIATE TIME TO ADDRESS
A CONCERN I UNDERSTAND SOME MEMBERS HAVE WITH RESPECT TO ACCESS BY
THE FOREIGN AFFAIRS COMMITTEE TO INTELLIGENCE INFORMATION. IN MY
VIEW, THE FOREIGN AFFAIRS COMMITTEE DOES HAVE A LEGITIMATE NEED
FOR INFORMATION ABOUT DEVELOPMENTS AROUND THE WORLD. SOME OF
THIS INFORMATION IS CLASSIFIED. OUR BEST INTELLIGENCE ANALYSIS
ABOUT THE SIGNIFICANCE AND IMPLICATIONS OF SUCH DEVELOPMENTS CAN
PLAY AN IMPORTANT PART IN THE COMMITTEE DOING ITS WORK PROPERLY.
I BELIEVE THE RECORD WILL SHOW THAT THE CENTRAL INTELLIGENCE
ACENCY HAS, IN FACT, BEEN RESPONSIVE TO THE REQUEST OF THE
COMMITTEE FOR SUCH INFORMATION. SOME RECENT STATISTICS HELP TO
ILLUSTRATE THIS POINT. DURING THE PERIOD FROM 1986 TO THE
PRESENT, THERE HAVE BEEN 48 STAFF BRIEFINGS, 68 MEMBER BRIEFINGS,
AND 14 APPEARANCES BEFORE THE COMMITTEE INVOLVING FORMAL
TESTIMONY. TO THE CONGRESS AS A WHOLE, CIA NOW PROVIDES MORE THAN
1,000 BRIEFINGS PER YEAR. LISTENING TO THESE BRIEFINGS TAKES A
GREAT DEAL OF VALUABLE TIME ON YOUR PART, SO 1 GATHER YOU FIND
THEM USEFUL.
9
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THE SUBSTANCE OF THE INFORMATION CONVEYED BY THE AGENCY TO THE
CONGRESS HAS RANGED FROM PRETRIP BRIEFINGS ON PARTICULAR COUNTRIES
FOR MEMBERS TO FORMAL TESTIMONY ON THE DISASTER AT CHERNOBYL OR
TERRORISM IN GENERAL. IN ADDITION, THE COMMITTEE HAS ACCESS TO
THE NATIONAL INTELLIGENCE DAILY, OUR NATIONAL INTELLIGENCE
ESTIMATES AND A VARIETY OF OTHER INTELLIGENCE PUBLICATIONS.
I WOULD URGE MEMBERS OF THIS COMMITTEE WHO ARE INTERESTED IN
OBTAINING MORE INTELLIGENCE INFORMATION TO TAKE ADVANTAGE OF THE
ACCESS OF THE COMMITTEE TO THIS WEALTH OF INFORMATION.
WHILE I BELIEVE WE HAVE BEEN RESPONSIVE TO THE COMMITTEE' S
REGUEST FOR INTELLIGENCE INFORMATION, I HOPE THAT YOU WILL
UNDERSTAND MY NEED TO PROTECT FROM DISCLOSURE OPERATIONAL
INTELLIGENCE INFORMATION THAT MIGHT JEOPARDIZE OUR SOURCES AND
METHODS FOR GATHERING THIS INFORMATION. WHEN THIS INFORMATION IS
COMPROMISED, NOT ONLY IS THE PARTICULAR SOURCE OF INTELLIGENCE
LOST TO THE U.S. GOVERNMENT, BUT OTHERS BECOME RELUCTANT TO
COOPERATE FOR FEAR THEIR IDENTITIES WILL ALSO BE DISCLOSED. IN
SOME CASES IT MAY BE ADVISABLE TO DISCLOSE SENSITIVE OPERATIONAL
INFORMATION IN ORDER FOR CONGRESS TO CONDUCT EFFECTIVE OVERSIGHT.
A DECISION WAS MADE BY CONGRESS ITSELF IN 1980 TO LIMIT THIS TYPE
OF INFORMATION TO THE INTELLIGENCE COMMITTEES. THIS DECISION WAS
A WISE ONE, AND I WOULD STRONGLY OPPOSE ANY PROPOSAL TO EXPAND THE
NUMBER OF CONGRESSIONAL COMMITTEES DIRECTLY INVOLVED IN
INTELLIGENCE OVERSIGHT.
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ACCESS TO COVERT ACTION INFORMATION
IN ADDITION TO THE QUESTION OF ACCESS TO INTELLIGENCE
INFORMATION IN GENERAL, I UNDERSTAND SOME MEMBERS ARE CONCERNED
THAT THE THE FOREIGN AFFAIRS COMMITTEE IS NOT BEING BRIEFED ON
COVERT ACTIONS THAT HAVE SIGNIFICANT FOREIGN POLICY IMPLICATIONS.
UNDER EXISTING LAW AND THE INTELLIGENCE OVERSIGHT BILL BEING
CONSIDERED BY THIS COMMITTEE, ACCESS TO COVERT ACTION INFORMATION
IS CONFINED TO THE INTELLIGENCE OVERSIGHT COMMITTEES AND THE
DEFENSE SUBCOMMITTEES OF THE APPROPRIATIONS COMMITTEES. I DO NOT
BELIEVE IT IS NECESSARY OR WISE TO EXPAND THE NUMBER OF COMMITTEES
TO WHICH WE MUST REPORT COVERT ACTIONS. TO DO SO WOULD SIMPLY
RETURN US TO THE SITUATION EXISTING BEFORE THE INTELLIGENCE
OVERSIGHT ACT OF 1980 WHEN WE HAD TO PROVIDE COVERT ACTION
INFORMATION TO EIGHT COMMITTEES OF CONGRESS. THIS SITUATION MADE
IT ALMOST IMPOSSIBLE TO CONDUCT COVERT ACTION COVERTLY.
I BELIEVE THAT THE CONCERN EXPRESSED BY SOME REGARDING THE
LACK OF COMMITTEE ACCESS TO COVERT ACTION INFORMATION MAY BE THE
RESULT OF A MISPERCEPTION AS TO HOW COVERT ACTION RELATES TO OUR
FOREIGN POLICY. COVERT ACTION IS IMPLEMENTATION BY CLANDESTINE
MEANS OF THE FOREIGN POLICY OF THE UNITED STATES GOVERNMENT. OUR
FOREIGN POLICY IS FORMULATED BY THE PRESIDENT AND THE SECRETARY OF
STATE.
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THE DIRECTOR OF CENTRAL INTELLIGENCE SHOULD NOT MAKE FOREIGN
POLICY OR USE COVERT ACTION AS A VEHICLE FOR CREATING A SECRET
FOREIGN POLICY. BECAUSE THE SECRETARY OF STATE IS OBLIGATED TO
KEEP THE FOREIGN AFFAIRS COMMITTEE INFORMED OF OUR FOREIGN POLICY,
I BELIEVE THAT THE COMMITTEE DOES HAVE THE NECESSARY MEANS TO MAKE
ITS VIEWS KNOWN REGARDING FOREIGN POLICY, INCLUDING THOSE SPECIFIC
POLICIES BEING IMPLEMENTED BY A COVERT ACTION.
IF YOU BELIEVE THAT THE ARRANGEMENT I HAVE DESCRIBED IS NOT
ADEQUATE TO ENSURE THAT THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE
ARE REPRESENTED IN THE OVERSIGHT OF COVERT ACTION, I WOULD SUGGEST
CONGRESS CONSIDER GREATER USE OF CROSS-OVER MEMBERSHIP BETWEEN THE
FOREIGN AFFAIRS COMMITTEE AND THE HOUSE INTELLIGENCE COMMITTEE.
SUCH CROSS-OVER MEMBERS ARE IN THE BEST POSSIBLE POSITION TO
EXPRESS THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE IN DELIBERATIONS
CONDUCTED BY THE HOUSE INTELLIGENCE ?COMMITTEE. SOME OF YOU NOW
SERVE OR HAVE IN THE PAST SERVED VERY EFFECTIVELY IN THIS WAY.
IN CLOSING, 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 COVERT ACTION, 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 CONGRESS RECEIVES THE
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APPROPRIATE INFORMATION NEEDED TO REVIEW AND MAKE INFORMED
JUDGMENTS ON COVERT ACTION, 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
ClA, I HAVE APPROVED A NUMBER OF MEASURES THAT WILL 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 TO WORK. INDEED, THEY ARE WORKING. I AM CONVINCED THAT
THE CURRENT FRAMEWORK, AND NOT NEW LAV.'S, 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.
1
THIS CONCLUDES MY STATEMENT. I AM PREPARED TO ANSWER YOUR
QUESTIONS.
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UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON FOREIGN AFFAIRS
June 14, 1988
STATEMENT OF THE HONORABLE CLARK M. CLIFFORD
Chairman Fascell 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 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 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
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.
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We have reached the 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
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.
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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 his 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 expli-
citly 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
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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 the 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.
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:
There may be instances where the President must
be able to initiate, direct, and control extreme-
ly 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 circum-
stances, to notify Congress of a covert action
within a fixed period of time, S. 1721 infringes
on this constitutional prerogative of the
President.
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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
Constitution 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
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
Committee and supported S. 1721, the companion bill to H.R.
3822, and earlier this year, I testified before the House
Intelligence Committee concerning H.R. 3822. I understand
that all of 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.
H.R. 3822 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
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.
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Findings 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. And the Senate's
approval of the legislation and the House intelligence
committee's favorable report of it are positive steps that I
encourage this committee to follow.
I would note that I recommended to the intelligence
committees in my earlier testimony that the legislation be
strengthened by including criminal sanctions for failure to
notify Congress within the required period. Specifically, I
proposed that a provision be added to H.R. 3822 prohibiting
the continued expenditure of funds for any covert activity
where proper notice was not given, and penalizing any
government employee who knowingly and willfully violated or
conspired to violate this prohibition. While the intelligence
committees did not adopt this proposal, it should remain an
important consideration for the future.
Finally, there are two questions concerning H.R. 3822
that arose during my previous testimony before the House and
Senate committees and that you also may wish answered.
First, is H.R. 3822, particularly the specific-notice
requirement, consistent with the Constitution? I have studied
this question extensively. I am convinced of the constitution-
ality of requiring the President to provide notice of covert
activities within forty-eight hours of approving them. There
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is no basis in the Constitution for the Administration's claim
of plenary Presidential power in foreign affairs; rather,
Congress and the President share concurrent authority in this
area according to the Constitutional system of checks and
balances. It is entirely consistent with Congress' legislative
and other, enumerated powers to establish reasonable procedural
regulation of covert activities.
On this score, it bears emphasizing that the specific-
notice requirement in H.R. 3822 is strictly procedural, not
substantive. It does not dictate or limit what covert activity
the President may approve or how or when the activity may
occur. It simply says that the President must provide notice
within a time certain. As the Committee knows, the oversight
process does not give Congress a veto, but only a voice.
Notice is an obvious and essential component of
oversight, and it is the least of what Congress may require in
fulfilling its oversight function. After all, it was by act
of Congress -- the National Security Act of 1947 -- that the
CIA was established and exists today; and it was by this same
act of Congress that covert activities were authorized and
continue to occur. H.R. 3822 represents a refinement of
Congress' previous reasonable procedural regulation of covert
activity.
Second, is this the appropriate time to enact this
legislation? Absolutely. Indeed, I believe that the
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legislation is long overdue. We have gone through the agony
of covert activity gone awry all too often. Change is
essential.
I can recall some thirteen years ago testifying before
the Select Committee to Study Governmental Operations -- 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.
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.
Now, the nation has endured yet another devastating blow
to our stature and effectiveness. The Iran-contra affair
demonstrated convincingly that the flexible requirement of the
1980 Act -- that Congress be notified of covert activity in a
"timely fashion" -- is too easily eluded by expedience. The
law must be made explicit and firm so that the oversight
process functions and the nation benefits.
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In my view, there is no excuse for failure to notify the
Congress according to the law, and there should be no
exception to compliance with such law. The purpose of this
legislation is not to assume good faith but to ensure good
government.
For many years the United States has offered leadership
to the world because of our character as a nation and our
devotion to freedom and the liberty of man.
We have great economic power.
We have unparalleled military power. But our standing in
the world community rests mainly upon the confidence and trust
that other nations have in us.
We do not hold the free world together at gunpoint.
It is mutual trust that binds us. And the vital element
of that trust is our credibility.
Unfortunately, our credibility has been grieviously
damaged this past year in many parts of the world.
It is incumbent upon all who are in positions of
authority to take the necessary steps toward restoring our
former position. This legislation is a splendid move in this
direction, and will be of vital importance in reducing the
possibility of another similar disaster.
Thank you.
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C3/9 rrA 78
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BRIEFING BOOK ON INTELLIGENCE OVERSIGHT LEGISLATION
FOR THE DIRECTOR OF CENTRAL INTELLIGENCE APPEARANCE
BEFORE THE FOREIGN AFFAIRS COMMITTEE
HOUSE OF REPRESENTATIVES
14 JUNE 1988
W_ 107-i
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INDEX
DCI APPEARANCE BEFORE FOREIGN AFFAIRS COMMITTEE ON LEGISLATION
TO REVISE THE INTELLIGENCE OVERSIGHT ACT
A. Background en Upcoming Hearing.
B. Opening Statement.
C. Questions and Answers.
D. Copy of H.R. 3822, the "Intelligence Oversight Act et 1988.
E. Copy of H.R. 3611, the "Foreign Intelligence Congressional
Notification Act. (the "Broomfield" bill)
E. Declassified National Security Decision Directive 266.
G. Opening Statement by Mike Armaccst.
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NOTE FOR: The Director
FROM: John L. helgerso
CO9 /S-72.?s3
rfoRNI 88
SUBJECT: Upcoming Testimony efore the House Foreign
Affairs Committee on Intelligence Oversight
Legislation
Attached is your briefing book in preparation for your
14 June appearance at an open House Foreign Affairs Committee
hearing on the Intelligence Oversight bill. Mike Armacost is
also scheduled to testify, and the Department of State has
requested that he appear with you in a panel. Clark Clifford
will make a separate appearance on the same day. Senator Cohen
and perhaps Secretary Carlucci will testify on 16 June tefore
the Committee. The Committee will mark up the legislation on
21 June.
This will be the third time you have appeared to testify on
this type of legislation. You previously appeared before the
House Intelligence Committee and the Senate Intelligence
Committee.
The Foreign Affairs Committee staff has informed us that
some Members are concerned that they do not receive sufficient
intelligence information and covert action information.
Because this is the first time you have appeared before the
Committee, it is likely you will get questions on this sutject
even though the hearing is technically on the Oversight
Legislation. In order to dispel certain misperceptions that
may have led to this concern, my staff has prepared an opening
statement that addresses the issue of access by the Foreign
Affairs Committee to intelligence information and covert action
information. The statement also, of course, addresses whether
the legislation is necessary and the practical problems with
the mandatory requirement to notify Congress, without
exception, of a covert action within 48 hours of the President
signing the Finding. WE have included Q & As that, cover these
issues.
The Committee staff has also informed us that there is a
good chance that you will receive other questions that have
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absolutely nothing to do with the Intelligence Oversight
Legislation, e.g., embassy security. Because some questions
may come out of "left field", I suggest you attempt to defer
answering those questions on the grounds that it would be
inappropriate to discuss the answer in an open hearing.
There are extreme ideological differences among Members of
the House Foreign Affairs Committee, and it is likely that
these differences will manifest themselves during the course of
the hearing. Because you may not be familiar with some of
these Members, my staff has prepared short profiles of each
Member of the Foreign Affairs Committee for your information.
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STATEMENT OF THE DIRECTOR OF CENTRAL INTELLIGENCE
BEFORE THE FOREIGN AFFAIRS COMMITTEE
HOUSE OF REPRESENTATIVES
14 JUNE 198E
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MR. CHAIRMAN AND MEMBERS OF THE FOREIGN AFFAIRS COMMITTEE,
I AM PLEASED TO BE HERE TODAY TO SHARE SOME OF MY THOUGHTS ON
H.R. 3822, THE INTELLIGENCE OVERSIGHT ACT OF 1988. SINCE THIS IS
THE FIRST TIME I HAVE APPEARED BEFORE THIS COMMITTEE AS DIRECTOR
CF CENTRAL INTELLIGENCE, I ALSO WANT TO TAKE THIS OPPORTUNITY TO
PROVIDE YOU WITH MY VIEWS ON THE RELATIONSHIP BETWEEN THIS
COMMITTEE AND THE CIA.
THE VIEWS EXPRESSED IN THIS STATEMENT ON H.R. 3822 REFLECT
THE POSITION OF THE ADMINISTRATION. I DRAW YOUR ATTENTION AT THE
OUTSET TO THE ADMINISTRATION POSITION, AS CONVEYED TO CONGRESS IN
THE PRESIDENT'S LEGISLATIVE MESSAGE, 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.
MR. CHAIRMAN, MY TESTIMONY TODAY WILL BE THE THIRD TIME I HAVE
TESTIFIED ON INTELLIGENCE OVERSIGHT LEGISLATION. I APPEARED LAST
NOVEMBER BEFORE THE SENATE INTELLIGENCE COMMITTEE TO TESTIFY ON
SIMILAR LEGISLATION AND IN FEBRUARY BEFORE THE HOUSE INTELLIGENCE
COMMITTEE ON H.R. 3622. IN MY TESTIMONY BEFORE THOSE COMMITTEES,
I FOCUSED PRIMARILY ON WHETHER THE LEGISLATION WAS TRULY NECESSARY,
AND ON THE PRACTICAL IMPACT OF THE OVERSIGHT BILL ON THE
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INTELLIGENCE COMMUNITY. I INTEND TO ADDRESS BOTH POINTS IN MY
TESTIMONY TODAY ON THE HOUSE BILL.
THE NEED FOR LEGISLATION
IN MY REMARKS BEFORE THE SENATE AND HOUSE INTELLIGENCE
COMMITTEES I QUESTIONED THE NEED FOR THIS TYPE OF LEGISLATION.
ALTHOUGH BOTH INTELLIGENCE COMMITTEES SUBSEQUENTLY DECIDED TO
RECOMMEND APPROVAL OF THE LEGISLATION, I STILL BELIEVE THAT THIS
LEGISLATION IS NOT A NECESSARY RESPONSE TC THE CONCERNS MEMBERS OF
THE CONGRESS HAVE EXPRESSED ABOUT THE OVERSIGHT CF COVERT ACTION.
As YOU KNOW, THE PRESIDENT RECOGNIZED LAST YEAR THAT THERE WAS
Roor FOR IMPROVEMENT IN THE WAY THE TWO BRANCHES WERE MEETING
THEIR RESPONSIBILITIES. As A RESULT, HE TOOK CONCRETE,
SUBSTANTIAL STEPS TC ESTABLISH IMPROVED PROCEDURES TO ENSURE THAT
CONGRESS IS GIVEN THE OPPORTUNITY TO PLAY ITS APPROPRIATE
OVERSIGHT ROLE. THESE NEW PROCEDURES, IN THE FORM OF A NATIONAL
SECURITY DECISION DIRECTIVE ON SPECIAL ACTIVITIES (NSDE-280, MUCH
OF WHICH HAS BEEN DECLASSIFIED, CLARIFY THE RULES BY WHICH COVERT
ACTIONS ARE REVIEWED, APPROVED, AND REPORTED TC CONGRESS. IN
FACT, MANY CF THE PROPOSALS CONTAINED IN H.R. 322 ARE ALREADY
CONTAINED IN NSDD-286. THIS CAN BE ILLUSTRATED BY MAKING A FEW
CCMPARISONS BETWEEN THE BILL AND THE PRESIDENTIAL DIRECTIVE.
--THE BILL REQUIRES THAT FINDINGS BE IN WRITING, CANNOT BE
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MADE RETROACTIVE, AND MUST BE CONSISTENT WITH EXISTING LAW.
SIMILAR REQUIREMENTS ARE CONTAINED IN THE NSDD.
--THE BILL MAKES CLEAR THAT A PRESIDENTIAL FINDING MUST BE
OBTAINED BEFORE ANY AGENCY OR DEPARTMENT CAN CONDUCT A COVERT
ACTION. THE PRESIDENTIAL DIRECTIVE AFFIRMS THIS PRINCIPLE.
--THE BILL REQUIRES THAT A PRESIDENTIAL FINDING SPECIFY THE
NAMES OF EACH DEPARTMENT OR AGENCY OF THE U.S. GOVERNMENT THAT
IS FUNDING OR PARTICIPATING IN A SIGNIFICANT WAY IN A COVERT
ACTION, AND WHETHER IT IS CONTEMPLATED THAT ANY THIRD PARTY
WILL BE USED TO FUND OR CTHERWISE PARTICIPATE IN A SIGNIFICANT
WAY IN THE COVERT ACTION. AGAIN, THE PRESIDENTIAL DIRECTIVE
CONTAINS THE SAME REQUIREMENT.
IT IS NOT SURPRISING OR COINCIDENTAL THAT PROVISIONS OF THE
BILL ARE SIMILAR TO THE PRESIDENTIAL DIRECTIVE. THE PROCEDURES
THE PRESIDENT HAS INSTALLED WERE DEVELOPED FOLLOWING CLOSE AND
PROLONGED CONSULTATION WITH MEMBERS AND STAFFS OF THE INTELLIGENCE
COMMITTEES.
WHILE A PRESIDENTIAL DIRECTIVE IS NOT THE SAME AS LEGISLATION,
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 SHOULD BE EMPLOYED ONLY IF IT IS CLEAR THAT
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THERE IS A BASIC DEFICIENCY IN THE OVERSIGHT PROCESS. THAT IS
DOUBLY THE CASE WHEN THE LEGISLATIVE REMEDY PROPOSED RAISES
CONSTITUTIONAL ISSUES THAT THREATEN TO DIVIDE THE TWO BRANCHES IN
AN AREA WHERE EFFECTIVE WORK PLACES A PREMIUM ON COOPERATION.
THE IRAN/CONTRA MATTER, WHILE 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 WERE THE RESULT OF
OFFICIALS FAILING TO FOLLOW EXISTING PROCEDURES AND RULES. AS YOU
MAY BE AWARE, I HAVE TAKEN STEPS WITHIN THE CIA TO DISCIPLINE
THOSE EMPLOYEES WHO FAILED TO FOLLOW CIA PROCEDURES OR WHO.
TESTIFIED TO CONGRESS IN A MANNER THAT WAS NOT CANDID OR
COMPLETE. THOSE ACTIONS, TAKEN IN LIGHT OF THE REQUIREMENTS
DEFINED BY CURRENT STATUTE, IN MY VIEW HAVE ADEQUATELY ADDRESSED
THE PROBLEMS WE FOUND. SIMILARLY, TO THE EXTENT THAT 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.
I WOULD LIKE TO EMPHASIZE THAT ANY LEGISLATION THAT IS ENACTED
SHOULD NOT ADVERSELY AFFECT THE INTELLIGENCE COMMUNITY'S ABILITY
TO DO ITS JOE. IN THIS CONNECTION, MR. CHAIRMAN, THE BILL PASSED
BY THE SENATE IN MARCH AND THE BILL MARKED UP BY THE HOUSE
INTELLIGENCE COMMITTEE HAVE ADDRESSED CONSTRUCTIVELY SOME OF THE
IMPORTANT SUBSTANTIVE CONCERNS I AND OTHER ADMINISTRATION
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OFFICIALS RAISED WITH THE ORIGINAL SENATE BILL INTRODUCED IN THAT
BODY. BOTH THE HOUSE AND SENATE BILLS, FOR EXAMPLE, RECOGNIZE THE
NEED TO REPORT ON SPECIAL ACTIVITIES AND INTELLIGENCE COLLECTION
IN A MANNER CONSISTENT WITH DUE REGARD FOR THE PROTECTION OF
SENSITIVE INTELLIGENCE SOURCES AND METHODS. I AM ALSO PLEASED
THAT NEITHER BILL REGUIRES THAT THE FINDING SPECIFY THE IDENTITY
OF FOREIGN COUNTRIES ASSISTING THE AGENCY IN THE CONDUCT OF COVERT
ACTION. THESE IMPORTANT SAFEGUARDS WILL IN MY VIEW GO A LONG WAY
IN ASSURING FRIENDLY INTELLIGENCE SERVICES AND POTENTIAL AGENTS
THAT SOURCE-IDENTIFYING INFORMATION WILL NOT BE WIDELY
DISSEMINATED AND POSSIBLY COMPROMISED.
I AM ALSO VERY PLEASED WITH THE CHANGES IN THE ORGINAL HOUSE
VERSION OF THE BILL MADE BY THE HOUSE INTELLIGENCE COMMITTEE IN
RESPONSE TO CONCERNS I RAISED BEFORE THAT COMMITTEE. ry
RESERVATIONS REGARDED THE DEFINITION OF COVERT ACTION, THE
EXPENDITURE OF NON-APPROPRIATED FUNDS AND THE REPORTING OF THE
TRANSFER OF DEFENSE ARTICLES OR SERVICES. IN PARTICULAR, THE NEW
DEFINITION OF COVERT ACTION REMOVES MUCH OF THE AMBIGUITY OVER
WHAT CONSTITUTES A COVERT ACTION AND IS IN MY VIEW A DISTINCT
IMPROVEMENT OVER THE CURRENT DEFINITIONS.
PRIOR NOTICE OF SPECIAL ACTIVITIES
WHILE THE INTELLIGENCE COMMITTEES HAVE ADDRESSED SEVERAL
CONCERNS PREVIOUSLY RAISED IN MY TESTIMONY BEFORE THOSE
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COMMITTEES, THERE IS ONE AREA OF THE BILL THAT REMAINS
PARTICULARLY TROUBLESOME. THIS AREA OF DIFFICULTY INVOLVES THE
PROVISION OF THE BILL THAT REQUIRES NOTIFICATION OF A COVERT
ACTION TO CONGRESS, WITHOUT EXCEPTION, WITHIN 48 HOURS AFTER THE
SIGNING OF A FINDING. LAST SUMMER, THE CEPARTMENT OF JUSTICE
PROVIDED THE CONGRESS WITH ITS VIEWS ON THE CONSTITUTIONALITY OF
SUCH A PROVISION, SO I WILL NOT ADDRESS THAT ISSUE HERE. I HAVE
TWO SEPARATE 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 DILL REGARDING THIS PROVISION'S
CONSTITUTIONAL VALIDITY WILL PROMOTE TENSION BETWEEN THE EXECUTIVE
ANL LECISLATIVE BRANCHES FOR YEARS TO COME. IN THE INTELLIGENCE
AREA SUCH TENSION HAS THE POTENTIAL TO DISRUPT THE COCPERATION AND
TRUST THAT EFFECTIVE NATIONAL SECURITY POLICY REQUIRES,
SECOND, I BELIEVE THAT AS A PRACTICABLE MATTER ALLOWANCE MUST
BE 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. IN SUCH A RARE
CASE, THE SUCCESS OF AN OPERATION MAY DEPEND ON THE COOPERATION OF
A FOREIGN GOVERNMENT ThAT HAS CONDITIONED ITS SUPPORT ON THE
PRESIDENT DELAYING CONGRESSIONAL NOTIFICATION UNTIL THE OPERATION
IS COMPLETED. AN INFLEXIBLE NOTIFICATION REQUIREMENT COULD FORCE
A PRESIDENT TO CHOOSE BETWEEN PROVIDING THE CONGRESSIONALLY
REQUIRED NOTIFICATION WITHIN 48 HOURS AND JEOPARDIZING THE
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LIVES OF INNOCENT AMERICANS, OR DELAYING THAT NOTIFICATION TO
PROTECT THOSE LIVES. I CAN UNDERSTAND WHY ANY PRESIDENT WOULD BE
RELUCTANT TO AGREE TO A LAW THAT WOULD REQUIRE SUCH CHOICES.
IT IS WORTHWHILE TO NOTE THAT 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 NECESSARY,
THE REASON FCR THAT DECISION WILL BE CONTINUALLY REASSESSED BY
RESPONSIBLE SENIOR OFFICERS OF SEVERAL AGENCIES OR DEPARTMENTS SO
THAT THE DELAY WILL BE AS SHORT AS POSSIBLE. I REPEAT, HOWEVER,
THAT I CAN THINK CF FEW CIRCUMSTANCES THAT WOULD EVER NECESSITATE
SUCH EXTRAORDINARY STEPS.
IF THE COMMITTEE SHOULD NEVERTHELESS DECIDE THAT LEGISLATION
IS NECESSARY TO LIMIT THE PRESIDENT'S AUTHORITY TO DELAY
NOTIFICATION, I WOULD URGE MEMBERS TO GIVE SERIOUS CONSIDERATION
TO LANGUAGE CONTAINED IN A BILL PROPOSED BY RANKING MINORITY
MEMBER EROOMFIELD THAT WOULD ALLOW THE PRESIDENT TO DELAY
NOTIFICATION IF HE DETERMINES THAT AN EMERGENCY.CONSTITUTING A
GRAVE AND IMMEDIATE THREAT TO THE NATIONAL SECURITY OF THE UNITED
STATES EXISTS. WHILE SUCH A STANDARD MAY NOT COVER ALL SITUATIONS
WHERE LIVES ARE AT STAKE, IT WOULD ALLOW THE PRESIDENT THE
FLEXIBILITY TO DELAY NOTIFICATION IN CIRCUMSTANCES WHERE THE
GOVERNMENT FACES A GRAVE AND IMMEDIATE THREAT TO ITS SECURITY.
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ACCESS BY FOREIGN AFFAIRS COMMITTEE TO INTELLIGENCE INFORMATION
ALTHOUGH NOT DIRECTLY RELEVANT TO THE LEGISLATION BEFORE THIS
COMMITTEE, I THOUGHT THIS WOULD BE AN APPROPRIATE TIME TO ADDRESS
A CONCERN I UNCERSTAND SOME NEMEERS HAVE WITH RESPECT TO ACCESS BY
THE FOREIGN AFFAIRS COMMITTEE TO INTELLIGENCE INFORMATION. IN MY
VIEW, THE FOREIGN AFFAIRS COMMITTEE DOES HAVE A LEGITIMATE NEED
FOR CLASSIFIED INFORMATION ABOUT DEVELOPMENTS AROUND THE WORLD,
AN FCR OUR BEST INTELLIGENCE ANALYSIS ABOUT THE SIGNIFICANCE AND
IMPLICATIONS OF SUCH DEVELOPMENTS IN ORDER TO DO ITS JOB PRCPERLY,
I BELIEVE THE RECORD WILL SHOW THAT THE CENTRAL INTELLIGENCE
AGENCY HAS, IN FACT, BEEN RESPONSIVE TO NEEDS OF THE COMMITTEE FOR
SUCH INFORMATION. SOME RECENT STATISTICS HELP TO ILLUSTRATE THIS
POINT. DURING THE PERIOD FROM 1986 TO THE PRESENT, THERE HAVE
BEEN 48 STAFF BRIEFINGS, 68 NEMBER BRIEFINGS, AND 14 APPEARANCES
BEFORE THE COMMITTEE INVOLVING FORMAL TESTIMONY. To THE CONGRESS
AS A WHOLE, CIA NO. PROVIDES MORE THAN 1,000 BRIEFINGS PER YEAR.
LISTENING TO THESE BRIEFINGS TAKES A GREAT DEAL OF VALUABLE TIME
ON YOUR PART, SC I GATHER YOU FIND THEM USEFUL.
THE SUBSTANCE OF THE INFORMATION CONVEYED BY THE AGENCY TO THE
CCNGRESS HAS RANGED FROM PRETRIP BRIEFINGS ON PARTICULAR COUNTRIES
FOR MEMBERS TO FORMAL TESTIMONY ON THE DISASTER AT CHERNOBYL OR
TERRORISM IN GENERAL. IN ADDITION, THE COMMITTEE HAS ACCESS TO
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THE NATIONAL INTELLIGENCE DAILY, OUR NATIONAL INTELLIGENCE
ESTIMATES AND A VARIETY OF OTHER INTELLIGENCE PUBLICATIONS.
I WOULD URGE MEMBERS OF THIS COMMITTEE WHO ARE INTERESTED IN
OBTAINING MORE INTELLIGENCE INFORMATION TO TAKE ADVANTAGE OF THE
ACCESS OF THE COMMITTEE TO THIS WEALTH OF INFORMATION.
WHILE I BELIEVE WE HAVE BEEN RESPONSIVE TO THE COMMITTEE'S
REQUEST FOR INTELLIGENCE INFORMATION, I HOPE THAT YOU WILL
UNDERSTAND MY NEED TO PROTECT FROM DISCLOSURE OPERATIONAL
INTELLIGENCE INFORMATION THAT MIGHT JEOPARDIZE OUR SOURCES AND
METHODS FOR GATHERING THIS INFORMATION. WHEN THIS INFORMATION IS
COMPROMISED, NOT ONLY IS THE PARTICULAR SOURCE CF INTELLIGENCE
LOST TO THE U.S. GOVERNMENT, BUT OTHERS BECOME RELUCTANT TO
COOPERATE FOR FEAR THEIR IDENTITIES WILL ALSO BE DISCLOSED. IN
SOME CASES IT IS NECESSARY TO DISCLOSE SENSITIVE OPERATIONAL
INFORMATION IN ORDER FOR CONGRESS TO CONDUCT EFFECTIVE OVERSIGHT,
A DECISION WAS MADE BY CONGRESS ITSELF IN 1S80 TO LIMIT THIS TYPE
OF INFORMATION TO THE INTELLIGENCE COMMITTEES. THIS DECISION WAS
A WISE ONE, AND I WOULD STRONGLY OPPOSE ANY PROPOSAL TO EXPAND THE
NUMBER OF CONGRESSIONAL COMMITTEES DIRECTLY INVOLVED IN
INTELLIGENCE OVERSIGHT.
ACCESS TO COVERT ACTION INFORNATION
IN ADDITION TO THE QUESTION OF ACCESS TO INTELLIGENCE
INFORMATION IN GENERAL, I UNDERSTAND SOME MEMBERS ARE CONCERNED
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THAT THE THE FOREIGN AFFAIRS COMMITTEE IS NOT BEING BRIEFED ON
COVERT ACTIONS THAT HAVE SIGNIFICANT FOREIGN POLICY IMPLICATIONS,
UNDER EXISTING LAW AND THE INTELLIGENCE OVERSIGHT BILL BEING
CONSIDERED BY THIS COMMITTEE, ACCESS TO COVERT ACTION INFORMATION
IS CONFINED TO THE INTELLIGENCE OVERSIGHT COMMITTEES AND THE
DEFENSE SUBCOMMITTEES OF THE APPROPRIATIONS COMMITTEES, I DO NOT
BELIEVE IT IS NECESSARY OR WISE TO EXPAND THE NUMBER OF COMMITTEES
TO WHICH WE MUST REPORT COVERT ACTIONS. To DO SO WOULD SIMPLY
RETURN LS TO THE SITUATION EXISTING BEFORE THE INTELLIGENCE
OVERSIGHT ACT OF 1980 WHEN WE HAD TO PROVIDE COVERT ACTION
INFORMATION TO EIGHT COMMITTEES OF CONGRESS. THIS SITUATION MADE
IT ALMOST IMPOSSIBLE TO CONDUCT COVERT ACTION SECRETLY.
I BELIEVE THAT THE CONCERN EXPRESSED BY SOME REGARDING THE
LACK OF COMMITTEE ACCESS TO COVERT ACTION INFORMATION MAY BE THE
RESULT CF A MISPERCEPTION AS TO HOW COVERT ACTION RELATES TO OUR
FOREIGN POLICY. COVERT ACTION IS IMPLEMENTATION BY CLANDESTINE
MEANS OF THE FOREIGN POLICY OF THE UNITED STATES GOVERNMENT. OUR
FCREIGN POLICY IS FORMULATED BY THE PRESIDENT AND THE SECRETARY OF
STATE.
IN MY VIE.', THE DIRECTOR OF CENTRAL INTELLIGENCE SHOULD NOT
MAKE FOREIGN POLICY OR USE COVERT ACTION AS A VEHICLE FOR CREATING
A SECRET FOREIGN POLICY. BECAUSE THE SECRETARY OF STATE IS
OBLIGATED TO KEEP THE FOREIGN AFFAIRS COMMITTEE INFORMED OF OUR
FOREIGN POLICY, I BELIEVE THAT THE COMMITTEE DOES HAVE THE
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NECESSARY MEANS TO MAKE ITS VIEWS KNOWN REGARDING FOREIGN POLICY,
INCLUDING THOSE SPECIFIC POLICIES BEING IMPLEMENTED BY A COVERT
ACTION.
IF YOU BELIEVE THAT THE ARRANGEMENT I HAVE DESCRIBED IS NOT
ADEQUATE TO ENSURE THAT THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE
ARE REPRESENTED IN THE OVERSIGHT OF COVERT ACTION, I WOULD SUGGEST
CONGRESS CONSIDER GREATER USE OF CROSS-OVER MEMBERSHIP BETWEEN THE
FOREIGN AFFAIRS COMMITTEE AND THE HOUSE INTELLIGENCE COMMITTEE.
SUCH CROSS-CVER MEMBERS ARE IN THE BEST POSSIBLE POSITION TO
EXPRESS THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE IN DELIBERATIONS
CONDUCTED EY THE HOUSE INTELLIGENCE COMMITTEE. SOME OF YOU NOW
SERVE CR HAVE IN THE PAST SERVED VERY EFFECTIVELY IN THIS WAY.
IN CLOSING, 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 COVERT ACTION, CAN ONLY BE SUCCESSFUL WHEN THE EXECUTIVE
AND LEGISLATIVE BRANCHES OF GOVERNMENT WORK TOGETHER IN AN
ATMOSPHERE CF MUTUAL RESPECT AND TRUST. THIS SPIRIT OF
COOPERATION CAN ONLY OCCUR IF THE CONGRESS RECEIVES THE
APPROPRIATE INFORMATION NEEDED TO REVIEW AND MAKE INFORMED
JUDGMENTS ON COVERT ACTION, WHILE AT THE SAME TIME ENSURING THAT
THIS INFORMATION IS PROTECTED FROM UNAUTHORIZED DISCLOSURE. THE
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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 THAT WILL 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 TO WORK. INDEED, THEY ARE WORKING. 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.
THIS CONCLUDES MY STATEMENT. I AM PREPARED TO ANSWER YOLR
QUESTIONS.
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INDEX FOR QUESTIONS AND ANSWERS
A. The Need For Legislation
Why Rely on a Presidential Directive to Remedy the Iran/Contra
Problems?
Does the Administration Oppose Any Change to the Oversight Laws?
How Does the Presidential Directive Prevent Private Citizens From
Making Foreign Policy?
B. Prior Notice of a Covert Action
Correctness of the Decision to Delay Notification of the Iran
Finding.
p. 1-2
p. 3
p. 4
P. 5
Is not Mandatory Notice the Best Way to Ensure the President Will Not
Excessively Delay Notice of a Finding? p. 6
Circumstances Under Which Notice Can Be Delayed Longer Than
48 Hours.
Hypothetical Situation Involving a Delay of Notice for Longer Than
48 Hours.
How Do You Interpret the Provision in the Broomfield bill Allowing
a Delay in Congressional Notification For Longer Than 48 Hours?
p. 7-8
p. 9-10
p. 11
What is the Outer Limits Beyond Which You Would Not Delay Notice? p. 12
Do You Trust the Intelligence Committees to Keep Information About
Covert Actions Secret. p. 13
Is the 48-Hour Notice Provision Constitutional? p. 14
Do You Agree With the DoJ Opinion on the Legality of the
Presidential Delay in Notification of the Iran Finding? p. 15
How Can the 48 Hour Notification Requirement be Made Acceptable? p. 16
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Do You Support Notice to Only the Congressional Leadership? p. 17
How Could the Bill be Made Acceptable to the President? P. 18
C. Access by Foreign Affairs Committee to Intelligence
Information
Will You Make Available Raw Intelligence Reports?
Will You Make Available Operational Information?
Will the Intelligence Oversight Bill Further Restrict Foreign
Affairs Committee Access to Intelligence Information?
D. Access by Foreign Affairs Committee to Covert Action
Information
p. 19
p. 20
p. 21
Did Casey have a Secret Foreign Policy and Could Some Future
Director have a Secret Foreign Policy? p. 22
How Can We Understand Foreign Policy Implemented Secretly? p. 23
What are the Procedures for Reporting on the Transfer of Defense
Articles and Services? P. 24
E. Miscellaneous
Do You Support Legislation to Criminalize Unauthorized Disclosure? p. 25
Did You Fire Officials Because They Violated the Law? p. 26
Will the New Definition of Special Activities Narrow What is
Reported TO Congress? p. 27
Do Requests by the U.S. to a Foreign Country to Perform a Covert
Action Require a Finding? p 28-29
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The Need for Legislation
Question: Why should Congress rely on a Presidential Directive to
fix the various problems exposed during the Iran/Contra hearings
regarding congressional oversight? Isn't legislation better than
a Directive since this President or a future President could
rescind without consultation with Congress the safeguards built
into the NSDD on special activities?
Answer: Legislative reforms should be enacted only when there has
been a demonstration that the existing statutory framework is
inadequate. I do not believe that the Iran/Contra matter has
demonstrated that statutory framework which governs oversight
activities is inadequate. I believe that a fair reading of the
record of the past six years--and of the notifications, reports,
briefings and testimony on covert action provided by CIA for the
benefits of the intelligence committees--is evidence that
Congress, with the exceptions of the Iran initiative and the
hostage rescue mission in 1980, has been kept informed in detail
of special activities. While I agree that the failure to inform
the Intelligence Committee of the Iran Finding for over 10 months
was inappropriate, I do not believe the single instance under the
Oversight Act in which Congress did not receive prior notice of a
special activity warrants altering in a significant way the
balance established in the Oversight Act between preserving
4110 essential secrecy and providing sufficient information to the
intelligence committees so that Congress can perform its oversight
functions.
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I must also point out that there are a couple of practical
reasons why a Presidential Directive is preferable to
legislation. First, a Presidential Directive serves to avoid a
potential constitutional confrontation that might occur if
Congress were to enact legislation to restrict the President's
prerogatives as Commander-in-Chief with respect to the conduct of
foreign affairs. I am sure the Justice Department will have
something to say on this point.
Second, a Presidential Directive affords greater flexibility
to all concerned parties to the oversight process in that it can
be more easily modified to meet unanticipated problems that
require adjustments in the procedures whereby covert actions are
reviewed in the Executive Branch and reported to Congress. While
it it true that such flexibility could allow the President to
rescind the order, I can assure the Committee that the
Administration intends to abide scrupulously by the terms of the
Directive and that significant changes in the Directive will not
be made without prior consultation with the Intelligence
Committee.
Note to DCI: It is unlikely that most Committee members will
accept the rationale that no legislation is needed in view of the
Iran/Contra report calling for tougher laws on reporting of covert
action activities to Congress.
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Question: Does the Administration oppose any attempt to amend the
current oversight laws? Do they think these laws are perfect?
Answer: The laws on Congressional Oversight are not perfect. For
example, the Hughes/Ryan Amendment for determining when a Finding
is required could be made more clear. The House bill does that.
Nevertheless, on the whole, the Administration views any change in
the oversight laws as premature. Most of the possible short-
comings in the system have been addressed by the new Presidential
Directive on special activities/covert action.
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Question: How does the new Presidential Directive prevent a
repetition of the situation we had in the Iran/Contra scandal with
respect to the issue of private citizens making their own foreign
policy for the U.S. Government?
Answer: The new Directive specifies that the Finding state
whether it is anticipated that private individuals will
participate in a significant way in a special acitivity and that
the Finding be distributed to all Members of the National Security
Planning Group. This requirement will flag such participation for
senior government officials, and will allow them to set strict
parameters on what these private officials will do to facilitate
the special activity/covert action. The new requirement means
that private citizens who participate in a covert action will not
be making their own foreign policy for the U.S. Government.
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Prior Notice of a Covert Action
Question: Do you believe the decision to withhold notice of
the Iran Finding for over 10 months was correct?
Answer: As I indicated in my confirmation hearing, I do not
believe it was appropriate or wise to have withheld notice of
the Iran Finding for 10 months from the Congress.
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Question: Is not legislation that requires the President to
notify Congress of a covert action within 48 hours atter he signs
the Finding the best way to ensure that there will never again be
a repetition of the President delaying notice of a Finding for 10
months?
Answer: Enacting a statutory requirement to inform Congress
within 48 hours is not the only way to ensure that a President
would not withhold notice for such a long period of time. The new
Presidential Directive on special activities sets up a mechanism
whereby the National Security Planning Group must review every 10
days any decision to delay congressional notification. This
mechanism will ensure that any delay in notification will be kept
to the absolute minimum length of time. Such a mechanism was not
in place when the original decision was made to withhold prior
notice of the Iran Finding. If it had been, I doubt strongly that
the delay would have gone on nearly as long as it did.
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Question: Describe the circumstances under which you could
possibly justify delaying notification of Congress of a covert
action for more than 48 hours?
Answer: As I stated in my confirmation hearing, it is difficult
for me to conjure up situations where prior notice would be
withheld. However, I simply cannot categorically rule out the
possibility of that rare instance where, for instance, lives
would be placed in severe jeopardy if there was premature
disclosure. Under such circumstances, delaying notification for
a brief period would be justified. As I said in my confirmation
hearing, I would not recommend to the President a delay of longer
than a few days. By requiring notification, without exception,
within 48 hours, the bill thus does not permit any flexibility to
allow an additional short delay in truly extraordinary
circumstances.
Note to the DCI: The proposed answer could lead to questions on
whether you could live with a statute that requires 72-hour
notification, or notification within a week. Obviously, the
longer the period of time given the President to delay
notification, the harder it will be for you to resist opposing the
provision. Nevertheless, we suggest that you avoid agreeing to a
provision that would require notification, without exception,
within a certain length of time. If pressed on this point, you
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Note Continued:
can always point out that you are in no position to make a
commitment on notification that only the President can truly
make.
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Question: Describe to the Committee a hypothetical situation
where you could justify delaying notice of a Presidential
Finding for longer than 48 hours?
Answer: As I indicated in my opening statement, a foreign
intelligence service could require as a condition of their
cooperation on a covert action that the President delay
congressional notification of the covert action until it is
completed. Such an operation could conceivably be designed to
save innocent American hostages who are being held captive by
terrorists.
If the President does not have the flexibility in law to
delay congressional notification for longer than 48 hours after
approval of the operation, he would face three alternatives.
The first alternative would be to meet the conditions the
foreign intelligence service have imposed and not inform
Congress within 48 hours, thereby violating the law. The
second alternative would be to inform the foreign service that
the President could not legally comply with their conditions.
The hostages would then remain prisoners and continue to suffer
at the hands of their tormentors. The third alternative would
be for the President to lie to the foreign intelligence service
by promising not to inform Congress and then to inform the
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Committee within 48 hours. If, for whatever reason, it was later
disclosed that the President had informed Congress, it would be
likely that this particular foreign intelligence service and other
services would severely
intelligence agencies.
face these alternatives
hour notice requirement.
curtail further cooperation with U.S.
No President or DCI should be forced to
by Congress legislating a mandatory 48-
Note to the DCI: This hypothetical is based in part on the
situation faced by President Carter when Canada conditioned
help in exfiltrating several Americans in Iran on condition
Congress be told after the fact.
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real
their
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Question: As you noted, Congressman Broomfield has introduced a
bill that would allow the President to delay notification in
situations where he determines that an emergency constituting a
grave and immediate threat to the national security interest of
the U.S. exists. How would you define an "emergency constituting
a grave and immediate threat to the national security interest of
the U.S.?
Answer: It would appear to cover situations in which the covert
action is designed to prevent a significant loss of American
lives, or where the disclosure of the covert action could result
in violent action being taken against the U.S. Government. I do
not believe it would normally cover situations involving the
rescue of innocent Americans held hostage or efforts to improve
our relations with a foreign power. Thus, if this standard had
been in effect during the Iran initiative it would have, in my
view, precluded a delay in congressional notification of the Iran
Finding.
Note for the DCI: A copy of the Broomfield bill is contained at
Tab D of your briefing book.
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Question: What is the outer time limit beyond which you would not
delay notification?
Answer: The current law requires the Committee to be notified in
"a timely fashion" when the Committee has not been given prior
notification of a special activity. As I stated in my
confirmation hearing, notice is timely at the moment when the
circumstance which the President believed required a deferral in
notice has ceased to be as compelling as the interest in this
Committee knowing about the activity. In terms of how long this
period would be, I have already stated that I would only recommend
to the President the withholding of notice for a few days.
Note to the DCI: The Committee staff is likely to have retrieved
your statements made in your confirmation hearing on delayed
notification. An extract of those statements is attached at Tab E
of background briefing book. Our suggested answers on this issue
tracks with the responses you made at that time. Any perceived
attempts to back away from those commitments will probably be
brought immediately to your attention.
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Question: In arguing for flexibility to delay notification for
longer than 48 hours where lives are at stake, aren't you really
saying that there may be situations where you cannot trust the
Intelligence Committee or the senior leadership of Congress to
keep the fact of the covert action secret and therefore need the
authority to delay notification until after the completion of the
activity? If this is the case, show us just one instance under
the Intelligence Committee's current leadership where there has
been a leak of sensitive information about a covert action.
Answer: I believe the Intelligence Committee has a good record in
protecting the secrets entrusted to it. However, it is sometimes
essential to limit knowledge of an operation to the absolute
minimum number of people. This does not mean that we do not trust
the people who are not told of the activity. Instead, we are
following common sense in keeping knowledge of a sensitive
activity to an absolute minimum to ensure the security of the
project. Having said this, let me add that in almost all cases
the security needs of the project would not outweigh the
legitimate needs of Congress for prior notice of a covert action.
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Question: Give us an analysis of the constitutionality of
limiting the President's power to delay notification of a special
activity to just 48 hours.
Answer: I would prefer to defer to the Department of Justice on
this issue.
Note to the DCI: If pressed by the Committee because of your
former role as an appellate judge, we recommend that you express
to the Committee doubts on the constitutionality of the
provision. See DOJ viewsletter on the provision, which is
included in the background briefing book at Tab G.
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Question: Do you agree with the conclusions reached by the
December 1986 Department of Justice memorandum that the
President's action in failing to notify the Committee of the
Iran Finding for 10 months was consistent with his
Constitutional powers?
Answer: I again defer to the Department of Justice on the
President's constitutional authorities to delay notice of a
Finding. Apart from the legal issue of the President's
constitutional authorities, I believe it was inappropriate to
withhold notice of the Iran finding for such a long period of
time.
Note to the DCI: We recommend that this answer be handled so
as not to give any appearance of any division between Justice
and the Agency on the issue of the President's constitutional
power with respect to delaying notification.
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Question: How can the provision on limiting the authority of the
President to delay notice be amended to make it acceptable?
Answer: As I indicated in my testimony, I believe that a step in
the right direction is the provision contained in a bill proposed
by Ranking Minority Member Broomfield that provides for delayed
notification in circumstances where the President determines that
an emergency constituting a grave and immediate threat to the
national security exists.
Note to the DCI: This answer clearly will be unacceptable to a
majority of the Committee because it would, in their view,
potentially allow the Administration indefinitely to delay
notification to Congress on politically unpopular special
activities. At its core, this concern really comes down to
members not trusting the President to carry out his obligation to
keep Congress informed on covert action. It will be difficult to
reestablish this sense of trust in a short time. We suggest
emphasizing your personal commitment to keep Congress informed of
covert action activities as the best way to head off legislation
requiring notice within a certain period of time.
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Question: Do you support the proposal in the Senate bill or the
Broomfield bill that would allow the President to limit
notification of Congress to just the four congressional leaders?
Answer: In general, 1 think it is a good idea to restrict access
to extremely sensitive covert action programs to a small group to
protect the security of the program. However, I will defer to the
Congress on deciding whether notification should be restricted to
the congressional leadership or the chairman and ranking minority
members of the oversight committees.
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Question: Would this bill be acceptable to the Administration if
it was amended to allow the President to defer notice of a
Presidential Finding for longer than 48 hours in rare cases?
Answer: Yes.
Note to the DCI: Colin Powell has sent a letter to the house
Intelligence Committee which states that the only remaining
problem with the bill is the requirement for notification within
48 hours. A copy of the letter is attached at Tab C of your
background briefing book.
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Access By Foreign Affairs Committee to Intelligence Information
Question: Will you make available to this Committee raw
intelligence reports?
Answer: It is our policy not to make available unevaluated
intelligence reports. Such reports are sometimes misleading and
could reveal the identity of the particular source who provided
the information.
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Question: Will you make available operational information to
the Committee when there has been allegation of wrongdoing?
Answer: It is our policy to provide such information to the
intelligence oversight committees, which are the Congressional
bodies charged with reviewing evidence of wrongdoing in the
Agency. I do not believe it would be appropriate to provide
such information to the Foreign Affairs Committee.
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Question: Will enactment of this bill restrict access by the
Foreign Affairs Committee to intelligence information that the
Committee currently receives?
Answer: No.
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Access by Foreign Affairs Committee to Covert Action Information
Question: Didn't your predecessor, Bill Casey, make his own
foreign policy in secret? Shouldn't this Committee have been kept
apprised of these secret foreign policy initiatives? How can we
be sure that a future Director will not decide to again use covert
action as a tool to further secret foreign policy initiatives?
Answer: I do not think it useful to comment in this forum on the
actions of Bill Casey, who made many useful contributions to
building a solid intelligence collection and analytical
capability. Nor can I predict what the views of some future
Director will be on this issue. What I can provide you today are
my views. As I indicated in my statement, I do not believe the
Director of CIA should make foreign policy or use covert action as
a means to implement a secret foreign policy not approved through
the established processes of government.
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Question: How can this Committee fully understand the foreign
policy of the United States if part of it is being secretly
implemented through covert action?
Answer: The policies being implemented by covert action are the
same policies being implemented by other actions of the
government. The Department of State briefs the Congress,
especially this Committee, on U.S. foreign policy. Your Committee
is not briefed on covert actions themselves. Other than through
increased use of cross-over Members, who also sit on the
Intelligence Committee, I see no way to remedy your concern
without increasing the number of people aware of a covert action
and thereby increasing the risks that the covert action will be
disclosed.
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Question: The House recently passed legislation sponsored by
Congressman Berman that would impose new restrictions on
providing defense articles or services to "terrorist"
countries, but exempted those transactions which would be
reported to the intelligence committees. What procedures do
you have to ensure that this type of information will be
reported to the intelligence committees?
Answer: Under existing law, a Finding would be required for
the transfer of defense articles or services pursuant to a
covert action. The Intelligence Committees would be notified
of the Finding. If the transfer of defense articles or
services was done for intelligence collection purposes, the
Intelligence Committees would be notified if the value of the
defense article or service exceed $1,000,000. Under the
Intelligence Oversight legislation as passed by the House, the
Agency would also be required to report in advance on the
transfer to a particular country of any defense article or
service that individually was worth less than $1,000,000 but
which aggregated to over $1,000,000 in a fiscal year. These
requirements will ensure that the Intelligence Committees will
be able to closely monitor such transfers.
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Miscellaneous
Question: Do you support an amendment to the Intelligence
Oversight bill that would criminalize unauthorized disclosure of
classified information received under the authority of the
Intelligence Oversight Act?
Answer: I understand such a proposal was offered as an amendment
to the Intelligence Oversight bill when it was being considered by
the house Intelligence Committee. I believe such a proposal has
merit because it would remove any doubt that the intentional
disclosure of classified information without proper authorization
is a serious offense which should be punished by a fine or jail
sentence.
Note to the DCI: A copy of the proposal offered by Representative
Livingston is attached at Tab D of your background briefing book.
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Question: Didn't you fire CIA officials because they were found
to have violated the law barring assistance to the Contras?
Answer: No. The officials were dismissed for failing to follow
CIA's own internal guidelines on assistance to the Contras or for
misleading Congress. It is for a court to determine whether they
were guilty of violating the law.
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Question: Will the new definition of covert action contained
in the bill approved by the House Intelligence Committee narrow
what activities must be reported to the Congress?
Answer: The new definition removes the ambiguity in existing
law as to what activities require a Finding. The new
definition is intended to reflect current practice as it has
developed under the Hughes-Ryan Amendment and the Executive
Order definition for determining whether an activity requires a
Finding. The new definition is somewhat complicated, but I
believe it covers those activities that have traditionally been
considered covert action. I suggest you read the House
Intelligence Committee report on the definition for a more
detailed explanation of what the definition covers.
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Question: A section of the bill provides that if the U.S. request
another country to conduct a covert action, that request should be
treated as a covert action for purposes of the bill. I am
concerned that this could infringe on the President's power to
conduct purely diplomatic activity. Wouldn't you agree that if a
covert action by another country were not actually subject to the
control or direction of the U.S. it would not fall within the
scope of this provision.
Answer: Without any further clarifying language, it is difficult
to determine the scope of this provision. I would be troubled if
this provision were interpreted to require that the President or
Secretary of State obtain a Finding before making a purely
diplomatic request for assistance and that country responds by
undertaking an activity which would fit within the definition of
covert action if carried out by the U.S. For example, the
President could ask the British to do everything they could to
free American hostages and the British might, without any support
from the U.S., undertake an activity to free our hostages which we
would consider to be a covert action. The initial general request
for help by the President should not require a Finding.
On the other hand, in my view a Finding would be required if
we were to request another country to undertake a specific covert
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action on our behalf and we monitored that activity and had some
degree of control over the activity. Furthermore, it is my view
that we should not request another country to undertake an
activity that we would be prohibited by law from undertaking
ourselves.
Note for the DCI: Staff informs us that Representative Broomfield
will ask you this question in order to build support to narrow the
scope of the provision of the bill at issue here. The White House
has not been particularly worried about this section of the bill
so we do not recommend you oppose this section of the bill in your
answer to the question. Rather, legislative history can do the
trick to narrow the application of this section.
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H.R. 3822
as reported by the House Permanent Select Connittee on Intelligencc
111/1 STRIKE ALL AFTER THE ENACTING CLAUSE AND INSERT IN LIEU THEREOF:
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SEC. 1. This Act may be cited as the "Intelligence Oversight Act of 1988".
SEC. 2. Section 662 of the Foreign Assistance Act of 1961 (22 U.S.C.
2422) is hereby repealed.
SEC. 3. Section 501 of title V of the National Security Act of 1947
(50 U.S.C. 413) is amended by striking the language contained therein, and
substituting the following new sections:
"GENERAL PROVISIONS
"SEC. 501. (a) The President shall ensure that the Select Committee on
Intelligence of the Senate and the Permanent Select Committee on Intelligence
of the House of Representatives (hereinafter in this title referred to as the
'intelligence committees') are kept fully and currently informed of the
intelligence activities of the United States, including any significant
anticipated intelligence activities, as required by this title: 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.
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"(b) The President shall ensure that any illegal intelligence activity is
reported promptly to the intelligence committees, as well as any corrective
action that has been taken or is planned in connection with such illegal
activity.
"(c) The President and the intelligence committees shall establish such
procedures as may be necessary to carry out the provisions of this title.
"(d) 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. In accordance with such procedures, each of the
intelligence committees shall promptly call to the attention of its respective
House, or to any appropriate committee or committees of its respective House,
any matter relating to intelligence activities requiring the attention of such
House or such committee or committees.
"(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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"(f) As used in this section, the term 'intelligence activities'
includes, but is not limited to, 'covert action' as defined in section 503(e).
"REPORTING INTELLIGENCE ACTIVITIES OTHER THAN COVERT ACTION
"SEC. 502. To the extent consistent with due regard for the protection
from unauthorized disclosure of classified information relating to sensitive
intelligence sources and methods or other exceptionally sensitive matters, the
Director of Central Intelligence and the heads of all departments, agencies,
and other entities of the United States Government involved in intelligence
activities shall (1) keep the intelligence committees fully and currently
informed of all intelligence activities, other than a covert action as defined
in section 503(e), which are the responsibility of, are engaged in by, or are
carried out for or on behalf of, any oepartment, agency, or entity of the
United States Government, including any significant anticipated intelligence
activity and any significant intelligence failure; and (2) furnish the
intelligence committees any information or material concerning intelligence
activities, other than covert actions, which is within their custody or
control, and which is requested by either of the intelligence committees in
order to carry out its authorized responsibilities.
"PRESIDENTIAL APPROVAL AND REPORTING OF COVERT ACTIONS
"SEC. 503. (a) The President may not authorize the conduct of a covert
action by departments, agencies, or entities of the United States Government
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unless he determines such an action is necessary to support identifiable
foreign policy objectives of the United States and is important to the
national security of the United States, which determination shall be set forth
in a finding that shall meet each of the following conditions:
"(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 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.
"(2) Except as permitted by paragraph (1), a finding may not
authorize or sanction covert actions, or any aspect of such actions, which
have already occurred.
"(3) Each finding shall specify each and every department, agency,
or entity of the United States Government authorized to fund or otherwise
participate in any significant way in such actions: 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 covert action 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, to govern such participation.
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"(4) 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 covert action
concerned, or be used to undertake the covert action concerned on behalf
of the United States.
"(5) A finding may not authorize any action that would violate any
statute of the United States.
"(b) To the extent consistent with due regard for the protection from
unauthorized disclosure of classified information relating to sensitive
intelligence sources and methods or other exceptionally sensitive matters, the
Director of Central Intelligence and the heads of all departments, agencies,
and entities of the United States Government involved in a covert action shall
keep the intelligence committees fully and currently informed of all covert
actions which are the responsibility of, are engaged in by, or are carried out
for or on behalf of, any department, agency or entity of the United States
Government, and shall furnish to the intelligence committees any information
or material concerning covert actions which is in the possession, custody or
control of any department, agency, or entity of the United States Government
and which is requested by either of the intellience committees in order to
carry out its authorized responsibilities.
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"(c)(1) The President shall ensure that any finding approved pursuant to
subsection (a) shall be reported to the intelligence committees as soon as
possible after such approval and prior to the initiation of the covert action
authorized by the finding: Provided, 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
majority and minority leaders of the Senate. In either case, a copy of the
finding, signed by the President, shall be provided to the chairman of each
intelligence committee. 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 provided.
"(2) 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 covert action before the notice required by
paragraph (1) can be given, such action may be initiated without such notice.
"(3) The President shall ensure that notice of a covert action 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 covert action has been
authorized pursuant to subsection (a). 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.
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"(d) The President shall ensure that the intelligence committees, or, if
applicable, the Members of Congress specified in subsection (c)(1), are
notified of any significant change in a previously-approved covert action, or
any significant undertaking pursuant to a previously approved finding, in the
same manner as findings are reported pursuant to subsection (c).
"(e) As used in this title, the term 'covert action' means an activity or
activities conducted by an element of the United States Government to
influence political, economic, or military conditions abroad so that the role
of the United States Government is not intended to be apparent or acknowledged
publicly, but does not include--
"(1) activities the primary purpose of which is to acquire
intelligence, traditional counterintelligence activities, traditional
activities to improve or maintain the operational security of United
States Government programs, or administrative activities;
"(2) traditional diplomatic or military activities or routine
support to such activities;
"(3) traditional law enforcement activities conducted by United
States Government law enforcement agencies or routine support to such
activities; or
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"(4) activities to provide routine support to the overt activities
(other than activities described in paragraphs (1), (2), or (3)) of other
United States Government agencies abroad.
A request by any department, agency, or entity of the United States to a
foreign government or a private citizen to conduct a.covert action on behalf
of the United States shall be deemed to be a covert action.
"(0 No covert action may be conducted if it is intended to influence
United States political processes, public opinion, policies, or media.".
SEC. 4. Section 502 of title V of the National Security Act of 1947
(50 U.S.C. 414) is redesignated as section 504 of such Act, and is amended by
deleting "501" in subsection (a)(2) of such section and inserting in lieu
thereof "503" and by adding at the end the following:
"(d) No funds appropriated for, or otherwise available to, any
department, agency, or entity of the United States Government, may be
expended, or may be directed to be expended, for any covert action, as defined
in section 503(e), unless and until a Presidential finding required by section
503(a) has been signed or otherwise issued in accordance with that subsection.
"(e) Except as provided in section 204(b) (appearing under the heading
'General Provisions--Department of Justice') of the Department of Justice
Appropriations Act, 1988 (contained in P.L. 100-202) and in Section 423 of
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Title 10, United States Code, funds available to an intelligence agency which
are not appropriated funds may be obligated or expended for an intelligence or
intelligence-related activity only if they are used for activities reported to
the appropriate congressional committees pursuant to procedures jointly agreed
upon by such committees, the Director of Central Intelligence or the Secretary
of Defense, which identify types of activities for which nonappropriated funds
may be expended and under what circumstances an activity must be reported as a
significant anticipated intelligence activity before such funds can be
expended.".
SEC. 5. Section 503 of title V of the National Security Act of 1947
(50 U.S.C. 415) is redesignated as section 505 of such Act, and subsection
(a)(1) of such section is amended by adding, " or the anticipated transfer in
any fiscal year of any aggregation of defense articles or defense services,"
after "service".
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100TH CONGRESS H
1ST SESSION
.R.3611
To provide for executive branch notification to the legislative branch of sensitive
foreign intelligence activities in a manner consistent with the constitutional
authorities and duties of both branches, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 5, 1987
Mr. BROOMFIELD introduced the following bill; which was referred to the
Committee on the Permanent Select Committee on Intelligence
A BILL
To provide for executive branch notification to the legislative
branch of sensitive foreign intelligence activities in a
manner consistent with the constitutional authorities and
duties of both branches, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Foreign Intelligence
4 Congressional Notification Act".
5 SEC. 2. (a) Paragraph 501(a)(1) of the National Security
6 Act of 1947 (50 U.S.C. 413 (a)(1)) is amended by-
7 (1) striking "(A)";
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2
1 (2) inserting a semicolon after "any such signifi-
2 cant anticipated intelligence activity"; and
3 (3) striking the remainder of the paragraph.
4 (b) Section 501 of the National Security Act of 1947 is
5 amended by adding at the end thereof the following new sub-
6 section:
7 "(0(1) No funds appropriated or otherwise available to
8 any department, agency, or entity of the United States may
9 be obligated or expended for any intelligence activity, includ-
10 ing any significant anticipated intelligence activity, unless the
11 Director of Central Intelligence or the head of the depart-
12 ment, agency or entity-
13 "(A) has notified the intelligence committees of
14 such activity; or
15 "(B) has notified the Speaker and minority leader
16 of the House of Representatives and the majority
17 leader and the minority leader of the Senate of such
18 activity, if the President has determined in writing that
19 it is essential to limit the number of persons given
20 prior notice of the activity to meet extraordinary cir-
21 cumstances affecting vital interests of the United
22 States.
23 "(2) The President may waive in writing the applicabil-
24 ity of paragraph (1) with respect to a particular intelligence
25 activity, including a particular significant anticipated intelli-
HR 3611 Hi
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3
1 gence activity, if he determines in writing that an emergency
2 constituting a grave and inunediate threat to the national se-
3 curity of the United States requires such a waiver.
4 "(3) This subsection shall not apply with respect to an
5 intelligence activity, including a significant anticipated intelli-
6 gence activity, for which funds were specifically authorized
7 by the Congress (as defined in Section 502(c)(3)).".
O.
HR 3611 111
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YIKULEait IUD
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41.
I. INTRODUCTION
A. The Policy Context
In discharging his constitutional responsibility for the conduct
of foreign relations and for ensuring the security of the United
States, the President may find it necessary that activities
conducted in support of national foreign policy objectives abroad
be planned and executed so that the role of the United States
Government is not apparent or acknowledged publicly. Such
activities, the failure or exposure of which may entail high
costs, must be conducted only after the President reaches an
informed judgment regarding their utility in particular circum-
stances. To the extent possible, they should be conducted only
when we are confident that, if they are revealed, the American
public would find them sensible.
This Directive.., sets forth revised procedures for presidential
approval and review, through the National Security Council (NSC)
process, of all *special activities" as defined by section 3.4(h)
of Executive Order No. 12333 (December 4, 1981).
These procedures are designed, inter alia, (1) to ensure that all
special activities conducted by, or at thedirection of, the
United States are consistent with national defense and foreign
policies and applicable law; (2) to provide standards ensuring
the secrecy of such activities even when the results become
publicly known or the activities themselves are the subject of
unauthorized disclosure; and (3) to implement section 501 of the
National Security Act of 1947, as amended (50 U.S.C. 413),
concerning notification to Congress of such activities.
B. The Role of the Assistant to the President for National
Security Affairs and the National Security Council Staff
Within the framework and in accordance with the requirements set
forth in NSCID 266, the Assistant to the President for National
Security Affairs (the "National Security Advisor') shall serve as
manager of the NSC process and as principal advisor on the
President's staff with respect to all national security affairs,
including special activities. The NSC staff, through the Execu-
tive Secretary of the NSC, shall assist the National Security
Advisor in discharging these responsibilities. The National
Security Advisor and the NSC staff themselves shall not undertake
the conduct of special activities.
pardapiondmignediunased an
mmkg provision of 8.00.12356
by D. Sitito, Widow' Security :ocne
eit;C:r..... P. 0717-w
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NSDD 286
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APPROVAL MD IPVIEW OF SPECIAL ACTIVITIL?
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A. Presidential Findings and Memoranda of Notification
1. Presidential Findings
In all cases, special activities of the Central Intelligence
Agency (CIA) in foreign countries require, under the terms of
section 662 of the Foreign Assistance Act of 1961, as amended
(22 U.S.C. 2422), Findings by the President that such activities
are important to the national security of the United States.
Presidential Findings shall be obtained with respect to all CIA
activities abroad, other than those activities that are intended
solely for obtaining necessary intelligence within the meaning of
section 662 of the Foreign Assistance Act of1961, as amended.
No special activity may be conducted except under the authority
of, and subsequent to, a Finding by the President that such
activity is important to the national security of the United
States. In all but the rarest of circumstances, no special
activity may be undertaken prior to the President's having signed
a written Finding. In cases in which the President determines
that time is of the essence and that the national security
requires that a special activity be undertaken before a written
Finding can be presented for signature, and that oral authoriza-
tion therefore is required, ...a contemporaneous record of the
President's authorization shall be made in writing, and? ? ? a
corresponding Finding shall be submitted for signature by the
President as soon as possible, but in no event more than two
working days thereafter. No Finding may retroactively authorize
or sanction a special activity.
2. Memoranda of Notification
In the event of any proposal to change substantially the means of
implementation of, or the level of resources, assets, or activity
under, a Finding; or in the event of any significant change in
the operational conditions, country or countries significantly
engaged, or risks associated with a special activity, a written
Memorandum of Notification (MON) shall be submitted to the
President for his approval. All actions to be authorized by
means of an MON must be important to U.S. national security as
set forth in a previously-approved Finding. An MON also shall be
submitted to the President for his approval in order to modify a
Finding in light of changed circumstances or passage of time; or
to cancel a Finding because the special activity authorized has
been completed or for any other reason.
The procedures for approval by the President of an MON shall be
the same as those established by this Directive for approval of a
Finding.
II pi tos,:trir
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3. Con nts and Accompanying Documernts
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Each Finding and MON submitted to the President for approval
shall be accompanied by or include a statement setting forth,
inter alia, the following:
(a) the policy objectives the special activity is
intended to serve and the goals to be achieved thereby;
(b) the actions authorized, resources required, and
Executive departments, agencies, and entities authorized to fund
or otherwise participate significantly in the conduct of such
special activity;
(c) consistent with the protection of intelligence
sources and methods, whether it is anticipated that private
individuals or organizations will be instrumental in the conduct
cf the special activity;
(d) consistent with the protection of intelligence
sources and methods, whether it is anticipated that a foreign
government or element thereof will participate significantly in
the special activity; and
(e) an assessment of the risks associated with the
activity.
B. NSC Review of Proposals for Special Activities
Prior to its submission to the President, each proposed Finding
and MON shall be reviewed within the NSC process as provided
below. The results of such review shall be submitted to the
President prior to his determination with regard to each proposed
Finding or MON.
1. The National Security Planning Group
Each proposed Finding and MON shall be reviewed by the National
Security Planning Group (MPG), a committee of the NSC... The
National Security Advisor shall be responsible for the agenda and
conduct of such meetings, at the President's direction. Unless
exceptional circumstances dictate otherwise, the National
Security Advisor shall circulate the agenda for, and papers to be
considered at, NSPG meetings four (4) days in advance thereof.
NSPG members shall review each proposed Finding and MON; their
comments, recommendations, and dissents, if any, shall be
provided to the President orally, or in writing through the
National Security Advisor. The National Security Advisor shall
transmit all proposed Findings and MONs to the President through
the Chief of Staff to the President. Each proposed Finding and
ON shall be coordinated, in advance of its submission to the
President, by the NSC Legal Advisor with the Counsel to the
President. Under normal circumstances, the NSPG will meet to
review each Finding or MON prior to presidential approval.
UWIT P"'T
1 r
fil far
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woo..? ? ?11?
The President as however, approve a Findit or NON on the basis
of the NSPG members' comments communicated other than in a formal
NSPG meeting. The National Security Advisor shall ensure that an
appropriate ucord is made of the President's consultations with
NSPG members however conducted, and that the President's decision
is committed-to writing. The National Security Advisor shall
notify all NSPG members in writing of the President's decision
with regard to each proposed Finding and MON...
C. Periodic NSC Review of Special Activities
Not less often than once each calendar year, the NSPG shall
review each special activity, and recommend to the President
those Findings to be reaffirmed, revised, or terminated. Unless,
within thirty (30) days following the conclusion of such review,
the President approves in writing the continuation of a Finding,
or otherwise directs, such Finding and associated MONs, if any,
together with the authority to undertake special activities
thereunder, shall be deemed cancelled upon appropriate notice to
the DCI or head of such other Executive department, agency, or
entity authorized to conduct the special activity. The National
Security Advisor shall provide a written report of the results of
this review to NSPG members. The Director of the Office of
Management and Budget shall ensure that the President's budget
provides resources consistent with all Findings for the
congressional budget request.
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D. Executive Secretary of the NSC
The Executive Secretary of the NSC and the NSC staff shall assist
the National Security Advisor and Deputy National Security
Advisor with appropriate preparations for, and follow-up to,
all.., meetings relating to special activities. Such assistance
shall include preparation of meeting minutes and the development
and dissemination of decision and other documents. The Executive
Secretary of the NSC shall have custody of record copies of
Findings and MOWS as approved by the President. The DCI, other
members of the NSPG and the head of such other Executive
department, agency or entity the President may direct to
undertake a special activity, shall be provided with a copy of
each Finding and MON as signed by the President, together with
the National Security Advisor's memorandum recording the
President's decision.
E. Conduct of Special Activities
Absent a specific presidential decision, as provided in section
1.8(e) of Executive Order 12333, that another Executive
department, agency or entity is more likely to achieve a
particular objective, no department, agency or entity other than
the CIA shall be responsible as lead agency for the conduct of a
special activity. Private individuals and organizations used in
the conduct of special activities shall be subject to observation
and supervision, as appropriate in the interests of proper
st!nis r "rir
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operational secu 4 and control, in accord. :s with procedures
established for such purpose by the CIA, or other Executive
department, agency, or entity.
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F. Restricted Consideration
1. Security
The National Security Advisor shall establish a separate,
specially compartmented control and access system at the Top
Secret classification level for all policy matters concerning
special activities...
G. Congressional Notification
1. The Requirement to Notify Congress
Consistent with section 501 of the National Security Act of 1947,
as amended (50 U.S.C. 413), and unless the President otherwise
directs in writing pursuant to his constitutional authorities and
duties, Congress shall be notified on the President's behalf of
all special activities in accordance with this Directive.
2. Contents of Notification
In all cases, notification to Congress as provided herein shall
include a copy of the Finding or associated MON, if any, as
signed by the President, and the statement described in section
II.A.3 hereof.
3. Prior Notification
Consistent with the expectation of prior notification to
Congress, in all but extraordinary circumstances as specified
herein, the DCI, or head of such other Executive department,
agency, or entity authorized to conduct a special activity, shall
notify Congress, on the President's behalf, through the Select
Committee on Intelligence of the Senate and the Permanent Select
Committee on Intelligence of the Rouse of Representatives
(hereinafter collectively referred to as the 'Intelligence
Committees"), prior to initiation of each special activity
authorized by a Finding and associated MON, if any. In
extraordinary circumstances affecting the vital interests of the
United States, the DCI, or head of such other Executive
department, agency, or entity authorized to conduct a special
activity, shall notify Congress, on the President's behalf,
through the Majority and Minority Leaders of the Senate, the
Speaker and Minority Leader of the House of Representatives, and
the Chairman and Vice Chairman of the Senate Select Committee on
Intelligence, and the Chairman and Ranking Minority Member of the
Permanent Select Committee on Intelligence of the House of
Representatives, prior to initiation of a special activity
authorized by a Finding and associated MON, if any.
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. ?ftry circumstances
If the President determines that it is necessary, in order to
4111 meet rare, extraordinary circumstances, to delay notification
until after the initiation of a special activity, the DCI, or
head of such other Executive department, agency, or entity
authorized to anduct a special activity, shall delay
notification consistent with section 501(b) at the direction of
the President. Unless the President otherwise directs, not later
than two working days after the President signs a Finding or
associated MON, if any, the Intelligence Committees shall be
notified in accordance with established procedures. In all such
cases, notification shall include the reasons for not giving
prior notice to the Intelligence Committees. In the event the
President directs that notification to Congress be delayed beyond
twc working days after presidential authorization of a special
activity as provided herein, the grounds for such delay shall be
memorialized in writing and shall be re-evaluated by the NSPG not
less frequently than every ten (10) days. ?
III. SPECIAL ACTIVITIES NOT CONDUCTED BY THE CIA
If, as provided in section 1.8(e) of Executive Order No. 12333,
the President directs that an Executive department, agency or
entity other than the CIA conduct a special activity, the
provisions of this Directive shall apply to such department,
'agency, or entity. In such cases, the head of such other
Executive department, agency or entity shall fully and currently
4111 inform the DCI of all aspects of the special activity, and
jointly with the DCI shall notify Congress of the special
activity, in accordance with the DCI's role as the President's
principal advisor on intelligence matters as set forth in
. NSDD 266.
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Thank
the views
Oversight
Committee
' STATEMENT BY
. MICHAEL H. ARMACOST
UNDER. SECRETARY FOR POLITICAL AFFAIRS
DEPARTMENT OF STATE ? ?
House Foreign Affairs
, Committee Hearing on
the Oversight
Intelligence Act of 1988
.... ? .?.
June 14, 1988
you for' the opportunity to 'appear ,today to present
of the Department of State on the Intelligence
Act, 'as marked 'up by the House Permanent Select
on Intelligence.,
During the past year, I have had the opportunity to testify
twice on the issue of oversight legislation. Last December, I
testified before the Senate Select Committee on Intelligence on
S. 1721, the companion bill to the bill before this committee.
On June 10, 1987 I testified before the House Permanent Select
? Committee on Intelligenccon Chairman Stoke's earlier version
of what is now, 1I.R.:3822.. ?
During this period, significant changes have been made to
the hill which this committee is now considering. Many ol the
specific objectLons made by the Administration, including the
Department of Stateuhave been addressed. This includes
problems Which t,and my distinguished colleagues on this panel
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01
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have identified regarding the protection of sources and methods
and the naming of foreign countries in findings. We are
pleased that changes have been made,to accommodate many of our
serious concerns.
? Nonetheless, we.regret that our most fundamental objections
regarding this bill remain. These objections require that we
oppose this bill.
Our most fumdaiental objection to the specific contents of
the current bill remains. absolute and rigid requirement to
notify Congress.within.48 hours of the adoption of a written
finding, combined with the deletion of the references in
present law to the constitutional.authorities of the exec4tive
and legislative branches.- As. you know, the President's NSDD
286 on covert action .(declassified last December) requite's that
findings now be reported to Congress within 48 hours of
signature except in extraordinary situations. We believe that
the NSDD establishes a sound procedure and provides the kind of
flexibility that is necessary in the execution of U.S. foreign
pa/icy.
In our view, the absolute 48-hour requirement may not be
reasonable in those very rare instances where extremely
sensitive operations require the tightest possible security to
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protect. the-lives of and.foreign,nationals. The 1980 Iran
rescure mission and the:role.of the Canadian Embassy in
assisting our people in Iran are examples.
In addition, the Justice Department has concluded that, the
48-hour requirement would infringe upon the President's
constitutional authority. The Justice Department has testified
on this matter before the' Senate, and has informed the HPSCI of
this conclusion in writing. This fundamental constitutional
objection to the bill remains.
However, there is another objection to thia hill which I
believe is not fully appreciated by many in Congress. In our
view, there is a need for Congress and the Executive to work
together closely on intelligence matters, and to have trust in
each other: The Iran-Contra affair obviously put great strains
on the relationship between our two branches on intelligenre
matters. This episode is now behind us. The President has
taken decisive action to ensure that there will not be a
repetition of that unfortunate affair.
The procedures established by NSDD 286 are working well and
will ensure that covert actions are decided upon in a proper
manner, taking into account All relevant factors. With the
exception of the rigid 48-hour rule, NSDD 286 incorporates the
significant changes to existing law reflected in H.R. 3822.
40-NRUENTIAL,
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The problem that we both face at this time is not inadequacy in
the law but, rather, the need to restore confidence and trust.
We do not believe the solution is to pass an unnecessary bill
which rekindles confrontation over a basic constitutional issue.
In many respects, the debate on this bill bears significant
similarities to past debate on the War Powers Resolution. This
Administration and all of its predecessors diming the past
fifteen years have expressed serious doubts regarding the
wisdom and constitutionality of that Act, and have declined to
implement those provisions which they considered
unconstitutional. When issues arise regarding the use of U.S.
armed forces abroad, we are distracted into.discussions of the
War Powers Resolution rather than deliberating together over
the substance of policy. An increasing number in Congress
appear to recognize these problems, as evidenced in recent
proposals to repeal or amend the War Powers Resolution.
We are concerned lest we be entangled in similar problems
in the case of intelligence matters, as would hP the case if
H.R. 3822 were to be enacted. Instead, we recommend a genuine
partnership that will enable Judge Webster and other senior
officials charged with reforming intelligence procedures the
--CONFIDENTIAL-
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chance to make their reforms work. We see this as operating to
the mutual advantage of the Congress and the Executive Branch.
We therefore urge the Committee not to recommend adoption of
this legislation.
Wang #14500-.
41"."'"'?
I ???11.,Y:;:
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BACKGROUND READING ON INTELLIGENCE OVERSIGHT LEGISLATION
FOR THE DIRECTOR OF CENTRAL INTELLIGENCE APPEARANCE
THE FOREIGN AFFAIRS COMMITTEE
HOUSE OF REPRESENTATIVES
14 JUNE 1988
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INDEX
BACKGROUND READING FOR DCI APPEARANCE BEFORE THE HOUSE FOREIGN
AFFAIRS COMMITTEE ON INTELLIGENCE OVERSIGHT LEGISLATION
C. Letter from Colin Powell to Chairman and Ranking Minority
Member of the House Intelligence Committee on H.R. 3822.
D. Livingston Leaks Legislative Proposal.
E. Previous Statements on 48-Hour Notification Requirement.
F. Copy of Intelligence Oversight Legislation as Passed by the
Senate.
G. DoJ Letter to House Intelligence Committee on Consti-
tutionality of Mandating Prior Notice.
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Dear Mr. Chairman:
We appreciate the opportunity to work with the Committee in
the effort tc address certain technical issues raised by the
language of H.R. 3622, the Intelligence Oversight Act of 1988, as
introduced in the House of Representatives. We have reviewed the
proposed amendments (copy attached) provided to us by Committee
staff on May 9. These amendments as drafted address certain
technical problems in the original language of H.R. 3622 about
which agencies expressed concern. (The CIA does not object to
the provision on the use of non-appropriated funds provided an
acceptable agreement is reached with committee staff on terms and
conditions under which non-appropriated funds would be reported
to the committee.)
The proposed amendments do not, of course, resolve the
Administration's constitutional objections to the proposed Act's
provision regarding the forty-eight-hour reporting requirement
for all covert action Findings, a problem that was outside the
scope of work our staffs have done on the technical issues
presented by the proposed Act. It should be well understood that
the President's senior advisors will recommend a veto of
legislation containing such an absolute reporting requirement
because such a requirement encroaches upon the President's
constitutional authority. As the President said in his message
to Congress, March 31, 1987, 'I will strongly oppose legislation
that would attempt to encroach further on what I regard as the
President's independent constitutional authority in the
intelligence field.'
In our work with the Committee staff, the effort to reach
agreement about an improved definition of 'covert action' for
incorporation into the proposed Act has been especially
important. This effort has helped to clarify and strengthen our
mutual understanding about what is meant by covert action. While
experience over time has produced mutual understanding as to what
constitutes covert action, ambiguities in existing law have
created misunderstandings and tension that both the Executive and
Legislative Branches are determined to avoid in the future. As
we understand it, the proposed definition is a distinct
improvement over the provisions of existing law. Our
understanding of the proposed definition is explained in the
attached analysis.
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In summary, the language used in the definition as well as
the process by which it was developed, should go a long way
toward preventing misunderstandings in the future. We hope that
it and the other technical amendments our staffs have discussed
can be incorporated in a bill that does not contain objectionable
features that would require a Presidential veto.
Sincerely,
Colin-L. Powell
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Attachment: Definition
The Honorable Louis Stokes
Chairman
Permanent Select Committee
on Intelligence
4111V.ouseOffice Building
ashington, D. C. 20515
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DEFINITION OF COVERT ACTION
Focusing on the draft definition of covert action furnished
cr May 9, 1988, this analysis sets forth the Administration's
understanding of the Committee's intent as well as our views
about particular language. We do this in the context of our
understanding that the Committee's goals are: ill to reach
acTeement between the two branches as to what constitutes covert
action; (2) to ensure that covert action receives presidential
approval and is reported to Congress whenever it is undertaken by
any Executive Branch entity; (3) to ensure that procedures for
reporting covert action will encompass significant operations
without trivializing and overloading the Finding process by
requiring presidential action for diplomatic, counter-
intelligence, security, military, law enforcement or other
activities that fall within the standing authorities and missions
of Executive Branch departments, agencies, and entities, and that
have not, in the past, been understood by both branches to be
covert action. /n light of this understanding, we take it that
the reference to influencing 'political, economic, or military
conditions abroad" is intended to encompass significant covert
operations of the type currentlr covered by the definition of
special activities" in Executive Order No. 12333 in the context
of intelligence agency missions and capabilities.
Similarly, we read the language regarding a U.S. role that
is "not intended to be apparent or acknowledged publicly' as
distinguishing between operations, which, while conducted
secretly for security reasons at the initial stage, ultimately
will be acknowledged and those which the United States has no
intention of ever acknowledging. Thus, we would not view
military special operations (preliminary reconnaissance for a
Grenada rescue mission, for example), as a covert action, even
though conducted secretly, because the ultimate intent is to
carry out a public operation. In our discussions with staff it
was agreed that 'clandestine' and 'covert' are not synonymous and
that secret preparations for activities that are ultimately
acknowledged or for which the U.S. Government has no intention of
denying responsibility, do not constitute 'covert actions.'
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The various exceptions contained in the proposed definition,
in our view, are crucial and reinforce this distinction between
"clandestine" and 'covert.' Further, the exceptions outlined are
critical to a definition of covert action that correctly matches
the real scope of the term. The risk inherent in giving new form
tc well understood concepts is that we might inadvertently leave
c;Nen to argument the question of whether the scope of the
definition actually has been changed.
The first exception, for example, clearly excludes clandes-
tine intelligence gathering from the definition of covert action.
It also excludes traditional counterintelligence activities and
traditional operational security activities. We agree with these
exclusions.
The reference to 'operational security' will help ensure -
understanding that security activities which might otherwise fall
within a broad description of covert action are excluded from the
definition of covert action in this Bill. 'Operational
security,' a term of art in the military, involves, but is not
limited to, measures including camouflage, concealment, cover,
a.7.2 deception. Making clear that such security measures,
tc,sether with other elements of security programs to protect U.S.
programs, are excluded from the intelligence activities covered
by the Bill will avoid ambiguity.
The second exclusion incorporates the concept of Executive
Order No. 12333 that diplomatic initiatives are outside the scope
of covert action even if conducted secretly. For example,
traditional activities of the Treasury Department are not
considered included. Likewise, it makes clear that 'traditional'
military activities, which have not in the past been considered
covert action, will not be included in the new definition merely
because the preamble refers to influencing 'military conditions
abroad.' Again, we do not believe that use of the term
'traditional' should be construed to mean that there must be an
exact precedent for every aspect of these activities. It is also
helpful that the exclusion makes it clear that routine support
for these diplomatic and military activities is not covert
action. /n this regard, we note with approval the assurance,
stated in the SSCI Report on S. 1721, that the revised definition
L t the Senate Bill is crafted so as to reflect existing law and
not to disturb the body of legal interpretation under current
legal requirements, as well as the oral statement of Subcommittee
Chairman McRugh to Secretary Carlucci on March 10, 1988, that
P.R. 3822 does not encompass traditional military activities.
The third exclusion makes it clear that even though the
csvert action definition is expanded to cover activities by all
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elements of the U.S. Government. this expansion is not intended
to encompass "traditional" law enforcement activities conducted
under cover. Similarly, it specifies that routine support to
such activities, even if provided by intelligence agencies, does
not require a Finding.
Finally, the fourth exclusion makes it clear that
clandestine, non-covert support services do not require a Finding
if the underlying operation itself does not require a Finding.
Thus, it shifts the focus to the nature of the undertaking being
supported rather than the nature of the agency providing support.
This clarification should prove particularly helpful in
eliminating ambiguities in situations where several agencies are
involved in an operation, not in itself covert, but involving
clandestine, non-covert support services.
No definition can anticipate every circumstance that may
arise. Experience gives rise to common understandings,
practices, and procedures. Since the establishment of the
Central Intelligence Agency and congressional intelligence
committees, the Executive and Legislative Branches have achieved
an understanding of covert action--recognizing that "covert
action" is synonymous with "special activities'--to be operations
designed to influence foreign governments, events, organizations
or persons in support of U.S. foreign policy objectives abroad,
whose sponsorship or conduct by the U.S. Government is officially
deniable, notwithstanding the disclosure of the activities during
or after their execution. This understanding traditionally has
meant that covert action consists of covert propaganda, covert
paramilitary, covert economic and covert political actions or
influence operations abroad. Since 1974, these operations have
required a Presidential Finding for their authorization. It has
also been understood that support by an Executive Department or
Agency, including DOD, to the conduct of a covert action by the
CIA or another Executive Department or Agency, pursuant to a
presidential Finding does not constitute, in itself, a separate
covert action. This is the traditional understanding of covert
action on which the Executive Branch consistently has operated
since the establishment of the requirement to report such
activities to Congress; and we interpret your proposed definition
of covert action to be consistent with this understanding.
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OSCI
MaY 9. 1988
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AMENDMENTS TO H.R. 3822
Page 1, line 5, delete "1987" and insert in lieu thereof "1988". Page 3,
line 23, delete the comma after "methods" and insert in lieu thereof "or
other exceptionally sensitive ratters,". Page 6, line 11, delete the
comma after "methods" and insert in lieu thereof "or other exceptionally
sensitive matters,".
2. Cr page 3, line 20, delete "(a)". Page 3, line 26, insert "(1)" before
"keep". Page 4, line 6, strike the period and insert in lieu thereof ":
and". Page 4, line 7, strike everything through "shall" on line 10, and
insert in lieu thereof "(2)".
3. On page 4, line 17, strike "The" and all that follows through "when" on
line 19 and insert in.lieu thereof "The President may not authorize the
conduct of a covert action by departments, agencies, or entities of the
United States Government unless".
n. On page 4, line 20, strike "the" and insert in lieu thereof "identifiable".
5. Page 5, lines 21-22, delete "in consultation with the Director of Central
Intelligence,".
6. On page 8, line 14,. strike everything through the period on page
and insert in lieu thereof
"(e) The term 'covert action' means an activity or
activities conducted by an element of the United States
Government to influence political, economic, or mdlitary
conditions abroad so that the role of the United States
Government is not intended to be Apparent or acknowledged
publicly, but does not include--
"(1) activities the primary purpose of which is to acquire
intelligence, traditional counterintelligence activities,
traditional activities to improve or maintain the
operational security of United States Government programs,
or administrative activities;
"(2) traditional diplomatic or military activities or
routine support to such activities:
"(3) traditional law enforcement activities conducted by
United States Government law enforcement agencies or
routine support to such activities; or
9, line
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%An ne suppoi to tne overt
activities (other than activities described in paragraphs
(1), (2), or (3)1 of other United States Government
agencies abroad."
?
? Strike "special activity" and "special activities" wherever they occur and
insert in lieu thereof respectively "covert action" and "covert actions".
Page 4, line 20 and page 7, line 21, strike "activity" and insert in lie..:
thereof "action". Page 5, lines 8 and 13, strike "activities" and insert
in lieu thereof "actions". Page 6, line 11, strike "funding" and insert
in lieu thereof "finding?. Page 9, line 2, strike "country" and insert in
lieu thereof "government".
E. Page 9, line 11, strike the coma and all that follows through the coma
on line 13. Page 9, line 14, strike "new vztsectiOn (d)". Page 9, line
21, strike the quotation narks and insert after line 21 the following:
"(e) Except as provided in Section 204(b) (appearing under
the heading 'General Provisions--Department of Justice') of
the Department of Justice Appropriations Act, 1988
(contained in P.L. 100-202) and in Section 423 of Title 10,
United States Code, funds available to an intelligence
agency which are not appropriated funds may be obligated or
expended for an intelligence or intelligence-related
activity only if they are used for activities reported to
the appropriate congressional committees pursuant to
procedures jointly agreed upon by such committees, the
Director of Central Intelligence or the Secretary of
Defense, which identify types of activities for which
nonappropriated funds may be expended and under what
circumstances an activity must be reported as a significant
anticipated intelligence activity before such funds can be
expended."
9. On page 10, line 1, insert "the anticipated transfer in any fiscal year
of" before "any'.
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AmenOment to the Amenogent in the Nature of a Stostitute
Offereo Dy Mr. mcmugh to H.R. 3822
Uffereo Dy
Page 10, after line 2, insert tne following:
Sec. 6. Title V of tne National Security Act of 1947 (50 USC 413, et.
seq.) is amendeo oy apoing at tne eno tnereof tne following new section:
"UNAJTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION
"Sec. 506. Any person wno, navino received classifieo information '
pursuant to tne provisions of this title, knowingly and willfully discloses
tne suostance of tnat information without tne autnorization of tne President,
unless pLzsuant to tne apolicapie rules of tne House of Congress of wnicn that
person is a memoer, officer or employee, shall De fine:, not less than $1,000
nor more tnan $20,333 or impris3nec for not less than ninety days nor more
tnan five years, or Potn.".
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Con F;rry..4,
g ii-er.1 lett 7
62
in hindsight we could have done a better job than they did. But
that?
Chairman BOREN. Had you known that it was going to indeed
turn into a criminal inquiry, which it did 4 days later, in essence,
when you were asked to bring the Bureau into it, thinking specifi-
cally about the need to protect records and the need to protect po-
tential evidence, had you known on the 21st that this was to
become a criminal inquiry, would you at that time have advised
the Attorney General that either the FBI or those within the Jus-
tice Department who have dealt with a criminal inquiry should
have been brought into it specifically to protect evidence?
Judge WEBSTER. Absolutely, Mr. Chairman. If I might go one step
further, I am confident the Attorney General wouldn't have had to
have that; he would have asked for it had he known it would be a
criminal.
Chairman BOREN. Well, I gather then it does not surprise you
that the Attorney General in his testimony before the committee
on December 17th, which we have released today, testified that you
agreed, and I quote from this, you agreed that it would not be ap-
propriate for the FBI to be brought in at that time.
Judge WEBSTER. That is correct.
Chairman BOREN. This morning you have entered into the record
some comments in regard to a memorandum, an internal FBI
memorandum dated October 30th, which bears your initials, which
indicates that an official at the Justice Department had speculated
that Colonel North might someday come under a criminal investi-
gation, and that certain information which was contained in this
memorandum might best be withheld from him at that time. I
wondered if, when you had those discussions with Attorney Gener-
al Meese on November 21st, it must have been known that Colonel
North was one of those involved with the Iranian matter, if you
had in mind or gave any thought to this information passing across
your desk, that there were at least some people in the Justice De-
partment who had suspicion that Colonel North might become the
target of criminal investigation?
Judge WEBSTER. No, I have to tell you in all candor it was not on
my mind. In fact, I don't even recall seeing it until it was called to
my attention recently in connection with preparing the answers to
these questions. It came up with the kinds of informational notes
that come up literally by the dozens, call for no action on my part,
had been reviewed by all of my career subordinates in the criminal
line. I really did not have that in mind.
Chairman BORN. So there was nothing in your mind at that
time that caused you to have any feeling that this might turn into
a criminal investigation.
Judge WEBSTER. No, Mr. Chairman. It was entirely focused on
Iran and the Iranian situation, the Iranian initiative. I frankly
have entertained some ill ease about the role of the National Secu-
rity Council in those areas, but I had no question about whether
ything illegal was taking place.
Chairman B.OREN. it me go now directly to the point of over-
t responsibility, and of course as you know, prior notification is
to be given to this committee, or at least in extraordinary circum-
stances to the leadership of this committee in regard to covert ac-
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63
t. , significant intelligence gathering activities, or any illegal in-
gather/Jig activities that are brought to the attention of
government Officials. These are also to be reported.
Van you think of any arcumfgtances in which the President
should withhold prior notice altogether, even of the Chairman ana
Vigo Chair' man of this committee and the four leaders of the two
Houses?
Judge WEBSTER. Mr. Chairman, it is difficult for me to conjure
up situations in which I, based on my own experience with this
committee, would want to see information withheld. This is not to
say that the President might take a different view of an extraordi-
narily sensitive, potentially life-threatening initiative that could be
damaged and lives put at risk if there were some kind of prema-
ture exposure. I have difficulty thinking of any such situations. But
the President has a more overriding responsibility.
Chairman BOREN. If for some reason some dire emergency devel-
oped where notice were withheld from this committee, the Presi-
dent, of course, then is required to provide notice after the fact in a
timely fashion. How would you interpret that phase, "in a timely
fashion"?
Judge WXBSTER. Well, of course, I went to the dictionary, having
a name of that kind?Webster's Dictionary?(general laughter.)
400 I didn't get very much help there nor really in the legislative his-
ry. It speaks about an appropriate time or in reference to some-
hing. In law, if there is a specific number of days you have to do
something, then you would decide whether you did it in a timely
way, that is, within the time prescribed. If there is no time, and it
appears that this issue was wrestled out during the legislation,
then we have to fall back on words like appropriate.
And in trying. to articulate to you my view of this, which I knew
that you would ask, it seems to me that notice is tiniey at the
moment when the compelling circumstances which the President
felt called for deferral ceased to be as compelling as the legitimate
interests of the Congress and its Select Committee in knowing it.
In other words, a deferral is not something you just put off indefi-
nitely. A deferral goes against the tide and it should be continually
revisited. It should be a subject of constant agenda review to deter-
mine whether it is appropriate at that point to let the cowmittee
know.
Chairman BOREN. If you had been Director of Central Intelli-
gence during the period of time in which we have just passed with
the Iranian arms situation and notification had been withheld for,
many months as it was, would you have advised the President that
you felt it was inappropriate to withhold notification of this com-
mittee for that period of time?
Judge WEBSTER. I would.
Chairman BOREN. If you were the Director of the Central Intelli-
gence Agency and a President took action to withhold notice for
Prolonged periods of time over your repeated objections and your
strong feeling that it was wrong in terms of the spirit of the law
and wrong in terms of public policy to continue to withhold notifi-
cation, what course of action would you take?
Judge WEssits. Mr. Chairman, I believe that the Director of
?
ntral Intelligence clearly has an obligation directly with the
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?vricir :',111fht IttatrZ444.S' sad "I" ai ion -90/5111,11 of 0110
? cOntintig acqUiescence hi?me,-
tilting *01 Imiliit44111,11*-01itteart rcTIMMS _that
you have just stated, inappropriate. And I think that I would hilve
W advise 00 Pros** VI 03? poidtion Ibid. 40# if tee would mot
authori Zwit to isielk to you. I *would bays in brie. ii Veit
Chaifhan BOREN. Let me ask one last question related to this
matter. As you know, the law talks about intelligence gathering ac-
tivities, and intelligence operations, and it says that this committee
is to be notified of intelligence gathering activities and operations
conducted by any agency. We have always assumed in the past
that it would be the traditional agencies like the Central Intelli-
gence Agency. We have learned in this instance that other bodies.
including the National Security Council, have undertaken oper-
ations at some point in time that are intelligence activities.
If you learned of what appeared to be legal activities by, let us
say. the National Security Council, agencies that are not consid-
ered traditionally intelligence operative agencies, or if you learned
of illegal activities, either one, about which this committee had not
been notified, would you view it as your responsibility?even
though you are Director of Central Intelligence, you wouldn't be di-
rector of the National Security Council or any other agency that
might be involved?would you view it as your responsibility as the
overseer of intelligence in general, to report such legal or illegal
intelligence activities to this Committee?
Judge W EBSTER I would consider it my first obligation to insist
that the member of the intelligence community or the National Se-
curity Council make the notification itself, and if it refused to de
so. I would consider it my obligation to inform you.
Chairman BOREN Thank you very much. Senator Cohen.
Senator COHEN. Thank you. Mr. Chairman.
Mr. Webster. you had some notice of the activities that were
taking place with respect to the sale of arms to Iran, as I recall. in
August of 19S6
Judge WEBFTER. That's correct.
Senator CoHEN. The circumstances were such that a deputy of
yours had a conversation with Colonel North. is that correct
Judge W EBSTER That is correct. Senator Cohen. It was not a pri-
vate conversation. It was at the operations subgroup committee
meeting at the Executive Office Building
Senator COHEN . But you were concerned enough about it to con-
tact Mr. Meese directly?
Judge W EBFTER . I was concerned enough about it to contact the
Attorney General directly.
Senator COHEN . Were you concerned, for example. that it might
be in violation of the Export Control Act'
Judge W ERSTE'', I wasn't focusing so much on specific statutes so
much as I wanted to he sure that the initiative was supported by a
Presidential Finding as Lieutenant Colonel North had represented
to Mr. Revell. and that the Attorney General had himself reviewed
it and approved it. We've had experiences in the past when the De-
part merit of Justice has somehow gotten outside the loop on deci-
sions in which the Attorney General really should have been in-
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124
strong as it was in the beginning, but when the corresponding need
to keep the Congress informed?to have the support of the Con-
gress through the Intelligence Committees was more compelling
goian the remaining reasons for keeping it secret.
t Senator COHEN. Do you recall seeing Mr. Gates testify before this
committee several weeks ago? Did you have a chance to either
watch or read about his interpretation of timelines?'
Judge WEBSTER . I've only seen portions of Mr. Gates' testimony,
and I have read portions of it.
Senator COHEN. With respect to timeliness, I think be indicated
at lbstreight Mils was about es timely as one could get within
Sie meaning of that interpretation. That beyond that Ume, jse
*4 be very concerned, and would feel compelledlto
-Judge Weasiva. I haven't any problem with that. I think he said
beveral days would be his view of the outside.
Senator COHEN. So you would confine timely notice, then, to
--within several days, as opposed to several months or in some eases
'several years?
Judge Wizasres. Well, I would try to relate it to the particular
Situation. And as I said in my testimony, I have trouble imagining
any situation that is so sensitive and life threatening that the Con-
gress cannot be advised -of it.
But one thing. not only do I believe the act makes it clear that
you're entitled to be informed, but also, I think, that any project
that cannot survive Congressional notification is suspect from the
beginning
Senator COHEN. You also indicated that one other test that you
would apply would be that you would have to know whether Con-
gress could keep that secret. That is not a condition in that statute
Judge WEBSTER I realize that. And I appreciate your bringing
that to my attention. But there are no conditions in the statute. It
says that the President should give his reasons why and that he
should notify in a timely way. And I was trying to leave room for
things that I have said I cannot even imagine that would?where
something was so tight that they couldn't come. I can't?I really?
I'm a lot in the situation I was when I stood before the commit-
-tee?Judiciary Committee to be Director of the FBI. I'm trying to
leave myself room for the unknown. But I'm telling you that I
don'tin ow any situations where you shouldn't be promptly ad-
vised.
Sew tor COHEN. I share your concern about not wanting to dis-
close information that might possibly be leaked and jeopardize
lives, and Senator Boren and the rest of us who sit on this commit-
tee are certainly dedicated to that
But that qualification is not part of the law, and ifs one of the
things that ended in this entire Iran affair where you have 011ie
North, for example, saying let's not tell Secretary Shultz If you
tell the Secretary of State, that's the end of the program. And let's
not tell all of the other people, and soon you have a private foreign
policy being carried out without anyone's notice or knowledge
beyond a select group within the White House. And that's a very
dangerous situation to--
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139
ed our investigation because the informant, through his attorney,
declines to be interviewed under terms acceptable to the govern-
ment. So I can't be final about that. It was only after the money
issue surfaced that the informant began to tell an entirely different
story to others than he had been telling to us.
Chairman BOREN. So the first problem surfaced the April 1984 to
the knowledge of authorities in the Bureau . . . with the break in
of the car and the investigation that followed.
Judge WEBSTER. That's correct.
Chairman BOREN. And then how long was it before you were per-
sonally notified that there might be something going wrong with
people who were involved in activities, operations, with a domestic
political group that was practicing political dissent?
Judge WEBSTER. I didn't anticipate that question. I'll have to
supply it for the record. I distinguish between the activities of Mr.
Flanagan and his informant and the overall investigation for
which there was a very solid predicate
Chairman BOREN. Did you make the decision personally to close
out this operation with CSPES?
Judge WEBSTER. No, I did not. That was made in the normal way
in which our domestic security investigations take place when, on
40 advice of the Department, there is no longer a basis for continuing.
That's part of the process.
Chairman BOREN. How can you be assured, as Director, that you
know of . . . in other words the American people have looked to
you as Director of the Federal Bureau of Investigation to make cer-
tain that the authority of the FBI is not abused in terms of legiti-
mate and rightful domestic political dissent. And if you are con-
firmed as Director of the Central Intelligence Agency, the Ameri-
can people will look principally to you to make sure that the assets
of that Agency are not used in any inappropriate, illegal, or uncon-
stitutional manner. What system did you have in place to make
sure that you would learn of any kind of complaint or problem that
might arise in terms of surveillance of domestic political dissent?
Judge WEBSTER. All allegations of impropriety are immediately
picked up by our Office of Professional Responsibility. They pass
through me to the Administrative Services Division for review fol-
lowing the completion of their investigation and then I monitor low
level administrative action and personally participate in high level
administrative action. If I can say to you as a generalization, with-
out trying to spell out all of the procedures that we have in place,
in my nine years of office, there has not been one single successful-
ly maintained claim of a violation of a constitutional right by
agents of the Federal Bureau of Investigation.
Chairman BOREN Senator Cohen and then Senator Specter will
follow Senator Cohen,
Senator COHEN. Judge Webster, I was not quite clear on the
notice that you would feel compelled to give to this committee in
the event of a covert operation. I would like to read Bob Gates' tes-
timony before the committee when he came before us for confirma-
.tion. He said, "I have committed to the committee that I will rec-
ommend to the President against withholding prior notification
under any circumstances except the most extreme involving life
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BB T. ates.e - a far mo inti-
Ns an our time. and I bops ke'Pi I gft
certainly would want to. I would expect to.
illenater Doeunt.1 dank if you it,you're Wog Ile bays Con-
pen legislating 48 hairs.
Judge WEBSTER., know that absolutely. And I don't want you to
have to do that.
P Senator COHEN. Do you want to think some more about whether -
pare going to be in a position at some Gaes made? point to make the Nam%
? of that Mr. t
? a : I I ?
le hem on the end
* very ef t confirmati
Judge w :4. OM masa at to you ncfAlosilth-lp-.1,1-.4.&nt from;
o' the 1 ? of thne I serve if I'm confirmed, to have you feel that
# have maintained every pledge that I have made to you.
Senator COHEN., What is your pledge now on the notice to the
committee on covert actions?
;Judge Wmtarna. My pledge is to notify you in the timeliest way
possible and that I cannot conceive of. . . and I said that yesterday
. .-. that I can't think of any that would not involve the prom
notification. That's whether we talk about several days, or rorty -
eight
eight hours, or talk about as moon as possible. I would like to see
you notified in lees than forty-eight hours if it's possible to do so in
a rational. reasonable way.
Senator COHEN. And what if you had doubts about the ability of
this committee to keep a secret?
Judge WEBSTER. Well I have no doubts at the present time. If
had reason to doubt. I think I would have to discuss that with the
Chairman and the Vice Chairman.
Senator COHEN. So you would still notify the Vice Chairman and
Chairman of the committee?
Judge WEBSTER. I would notify you that I had something to tell
you, but I had a problem in telling you and see if you'd work with
me on itrp
Senat61--CoHEN. I'll come back to that later. I was not exactly
clear on what your statement was with respect to the Abscam in-
vestigation or operation in which one Senator was suddenly pulled
in with your net.
Judge 'WEBSTER. We didn't say he was pulled in, he walked in.
Senator COHEN. Well, he was invited in.
Judge WEBSTER. He was invited in by a crook. not by the FBI.
Senator COHEN. Well that crook happened to be an informant for
the FBI.
Judge WEBSTER. .He was not an informant Senator. I'm glad you
asked that question. He was a corrupt influence peddler who was
himself tried and convicted, fined $15.000 and sentenced to 3 years
in the penitentiary.
Senator COHEN. How did he put out this so-called net without
FBI supervision?
Judge WEBSTER. We don't supervise people who are under inves-
tigation He was one of those under investigation, and we were fol-
lowing his activities We tried in two ways. which worked very sue-
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158
Chairman BOREN. And therefore?if absent that Finding at the
time, it would not have been a legal action?
In other words, retroactivity would not give legality to the
action?
Judge WEBSTER That would be my view of it.
Chairman BOREN. And therefore you would report that illegality
to this Committee?
Judge WEBsTER. I would report it.
Chairman BOREN. Let me ask also in terms of oral Findings be-
cause there is great concern of people saying that they are acting
with the authority of the President without his knowledge. Would
you pledge to us to act only upon either a written Finding, clearly
signed by the President of the United States, or upon an oral direc-
tion from the President himself in case of extreme emergency so
that you would know that that order came from the President and
from no other person presuming to act under his authority?
Judge WEBSTER I would.
'ant
BOREN. Let me go back again to the question, and I
you to think very carefully about this because it's very impor-
tant to the committee.
The law does provide for timely notice of covert action for which
prior notice is withheld by the President. The President withholds
prior notice, the law says then timely notice shall be given after
the fact
Now I want to repeat again and I want you to really think about
this because I can assure you it's extremely important to the mem-
bers of this committee.
The Vice Chairman has already read the words of Mr. Gates,
who has requested to give his position on this matter several times
in the course of the hearings and he indicated that he would rec-
ommend?we're not saying what would be done, you've already in-
dicated that if the President did not follow your recommendations
after a reasonable period of time, that you would consider leaving
your post
This has to do with what you would?not the President's action,
but what you would recommend Would you recommend to the
President against withholding notification under any circum-
stances except the most extreme circumstances involving life and
death and then only for a few days? Would that be your recommen-
dation? Would you tell this committee that that would be your rec-
ommendation based upon your understanding of the importance of
the oversight process?
Would you pledge to this committee to make that your recom-
mendation to the President?
Judge WEBSTER it would.
Chairman BOREN. Well, I appreciate that very much and I think
it's extremely important that that be understood because we're
going to build a consensus for foreign policy, make decisions togeth-
er, decisions that can stick and won't be reversed every other week.
I think it's essential that it is that kind of commitment and that
kind of understanding that both branches of government need to go
forward together.
Let me ask. and again. I don't want to come back to painful sub-
jects and I don't want to close on this note.
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?
100TH CONGRESS
2o SESSION
S. 1721
AN ACT
To improve the congressional oversight of certain intelligence
activities, and to strengthen the process by which such
activities are approved within the executive branch, and for
other purposes.
1 Be it enacted by the Senate and House of Representa-
2 fives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Oversight
4 Act of 1988".
5 SECTION 1. Section 662 of the Foreign Assistance Act
6 of 1961 (22 U.S.C. 2422) is hereby repealed.
7 SEC. 2. Section 501 of title V of the National Security
8 Act of 1947 (50 U.S.C. 413) is amended by striking the lan-
9 guage contained therein, and substituting the following new
10 sections:
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2
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?
1 "GENERAL PROVISIONS
2 "SEc. 501. (a) The President shall ensure that the
3 Select Committee on Intelligence of the Senate and the Per-
4 manent Select Committee of the House of Representatives
5 (hereinafter in this title referred to as the 'intelligence corn-
6 mittees') are kept fully and currently informed of the intelli-
7 gence activities of the United States, including any signifi-
8 cant anticipated intelligence activities, as required by this
9 title: Provided, however, That nothing contained in this title
10 shall be construed as requiring the approval of the intelli-
11 gence committees as a condition precedent to the initiation of
12 such activities: And provided further, however, That nothing
13 contained herein shall be construed as a limitation on the
14 power of the President to initiate such activities in a manner
15 consistent with his powers conferred by the Constitution.
16 "(b) The President shall ensure that any illegal intelli-
17 gence activity is reported to the intelligence committees, as
18 well as any corrective action that has been taken or is
19 planned in connection with such illegal activity.
20 "(c) The President and the intelligence committees shall
21 each establish such procedures as may be necessary to carry
22 out the provisions of this title.
23 "(d) The House of Representatives and the Senate, in
24 consultation with the Director of Central Intelligence, shall
25 each establish, by rule or resolution of such House, proce-
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1 dures to protect from unauthorized disclosure all classified
2 information and all information relating to intelligence
8 sources and methods furnished to the intelligence committees
4 or to Members of Congress under this title. In accordance
5 with such procedures, each of the intelligence committees
6 shall promptly call to the attention of its respective House, or
7 to any appropriate committee or committees of its respective
8 House, any matter relating to intelligence activities requiring
9 the attention of such House or such committee or corn-
10 mittees.
11 "(e) As used in this section, the term 'intelligence activi-
12 ties' includes, but is not limited to, 'special activities,' as de-
13 fined in subsection 503(e), below.
14 "REPORTING INTELLIGENCE ACTIVITIES OTHER THAN
15 SPECIAL ACTIVITIES
16 "SEc. 502. To the extent consistent with due regard for
17 the protection from unauthorized disclosure of classified infor-
18 mation relating to sensitive intelligence sources and methods
19 or other exceptionally sensitive matters, the Director of Cen-
20 tral Intelligence and the heads of all departments, agencies,
21 and other entities of the United States Government involved
22 in intelligence activities shall:
23 "(a) keep the intelligence committees fully and
24 currently informed of all intelligence activities, other
25 than special activities, as defined in subsection 503(e),
26 below, which are the responsibility of, are engaged in
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1 by, or are carried out for or on behalf of, any depart-
2 ment, agency, or entity of the United States Govern-
3 ment, including any significant anticipated intelligence
4 activity and significant failures; and
5 "(b) furnish the intelligence committees any infor-
6 mation or material concerning intelligence activities
7 other than special activities which is within their custo-
8 dy or control, and which is requested by either of the
9 intelligence committees in order to carry out its au-
10 thorized responsibilities.
11 "PRESIDENTIAL APPROVAL AND REPORTING SPECIAL
12 ACTIVITIES
13 "SEC. 503. (a) The President may authorize the con-
14 duct of 'special activities,' as defined herein below, by depart..
15 ments, agencies, or entities of the United States Government
16 only when he determines such activities are necessary to sup-
17 port the foreign policy objectives of the United States and are
18 important to the national security of the United States, which
19 determination shall be set forth in a finding that shall meet
20 each of the following conditions:
21 "(1) Each finding shall be in writing, unless im-
22 mediate action by the United States is required and
23 time does not permit the preparation of a written find-
24 ing, in which case a written record of the President's
25 decision shall be contemporaneously made and shall be
26 reduced to a written finding as soon as possible but in
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1 no event more than forty-eight hours after the decision
2 is made;
3 "(2) A finding may not authorize or sanction spe-
4 cial activities, or any aspect of such activities, which
5 have already occurred;
6 "(3) Each finding shall specify each and every de-
7 partment, agency, or entity of the United States Gov-
8 ernment authorized to fund or otherwise participate in
9 any significant way in such activities: Provided, That
10 any employee, contractor, or contract agent of a de-
11 partment, agency, or entity of the United States Gov-
12 ernment other than the Central Intelligence Agency di-
13 rected to participate in any way in a special activity
? 14 shall be subject either to the policies and regulations of
15 the Central Intelligence Agency, or to written policies
16 or regulations adopted by such department, agency or
17 entity, to govern such participation;
18 "(4) Each finding shall specify whether it is con-
19 templated that any third party which is not an element
20 of, contractor or contract agent of, the United States
21 Government, or is not otherwise subject to United
22 States Government policies and regulations, will be
23 used to fund or otherwise participate in any significant
24 way in the special activity concerned, or be used to un-
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6
1 dertake the special activity concerned on behalf of the
110 2 United States;
3 "(5) A finding may not authorize any action in- ?
4 tended to influence United States political processes,
5 public opinion, policies or media; and
6 "(6) A finding may not authorize any action
7 which violates the Constitution of the United States or
8 any statutes of the United States.
9 "(b) To the extent consistent with due regard for the
10 protection from unauthorized disclosure of classified informa-
11 tion relating to sensitive intelligence sources and methods, or
12 other exceptionally sensitive matters, the Director of Central
13 Intelligence and the heads of all departments, agencies, and
14 entities of the United States Government involved in a spe-
15 cial activity shall:
16 "(1) keep the intelligence committees fully and
17 currently informed of all special activities which are
18 the responsibility of, are engaged in by, or are carried
19 out for or on behalf of, any department, agency, or
20 entity of the United States Government, including Big-
21 nificant failures; and
22 "(2) furnish to the intelligence committees any in-
23 formation or material concerning special activities
24 which is in the possession, custody or control of any
25 department, agency, or entity of the United States
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Government and which is requested by either of the in-
2 telligence committees in order to carry out its author-
? ized responsibilities.
4 "(cX1) Except as provided in subsections (2) through
5 (4), below, the President shall ensure that any finding ap-
6 proved, or determination made, pursuant to subsection (a),
7 above, shall be reported to the intelligence committees prior
8 to the initiation of the activities authorized, and in no event
9 later than forty-eight hours after such finding is signed or the
10 determination is otherwise made by the President.
11 "(2) On rare occasions when time is of the essence, the
12 President may direct that special activities be initiated prior
13 to reporting such activities to the intelligence committees:
14 Provided, however, That in such circumstances, notice shall
15 be provided the intelligence committees as soon as possible
16 thereafter but in no event later than forty-eight hours after
17 the finding authorizing such activities is signed or such deter-
18 mination is made, pursuant to subsection (a), above.
19 "(3) When the President determines it is essential to
20 meet extraordinary circumstances affecting vital interests of
21 the United States, the President may limit the reporting of
22 findings or determinations pursuant to subsections (1) or (2)
23 of this section, to the chairmen and ranking minority mem-
24 bers of the intelligence committees, the Speaker and minority
25 leader of the House of Representatives, and the majority and
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1 minority leaders of the Senate. In such case, the President
2 shall provide a statement of the reasons for limiting
3 access to such findings or determinations in accordance with
4 this subsection.
5 "(4) Notwithstanding the provisions of subsection (3)
6 above, when the President determines it is essential to meet
7 extraordinary circumstances affecting the most vital security
8 interests of the United States and the. risk of disclosure con-
9 stitutes a grave risk to such vital interests, the President may
10 limit the reporting of findings or determinations pursuant to
11 subsections (1) or (2) of this section to the Speaker and mi-
12 nority leader of the House of Representatives, and the major-
13 ity and minority leaders of the Senate. In such cases, the
14 President shall provide a statement of the reasons explaining
15 why notice to the intelligence committees is not being provid-
16 ed in accordance with subsection (c)(1), above. The President
17 shall personally reconsider each month thereafter the reasons
18 for continuing to limit such notice, and provide a statement to
19 the Members of Congress identified herein above on a month-
20 ly basis, confirming his decision, until such time as notice is,
21 in fact, provided the intelligence committees. Any informa-
22 tion provided by the President pursuant to this subsection
23 shall be subject to the provisions of S. Res. 400, Ninety-
24 fourth Congress, and to rule XLVIE of the Rules of the
25 House of Representatives, and may be subsequently disclosed
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1 by the recipients only in accordance with the applicable pro-
2 visions of such resolution or rule.
411 3 "(5) In all cases reported pursuant to subsections (c)(1),
4 (c)(2), and (c)(3), above, a copy of the finding, signed by the
5 President, shall be provided to the chairman of each intelli-
6 gence committee. In all cases reported pursuant to subsection
7 (c)(4), a copy of the finding, signed by the President, shall be
8 shown to the Members of Congress identified in such subsec-
9 tion at the time such finding is reported.
10 "(d) The President shall ensure that the intelligence
11 committees, or, if applicable, the Members of Congress speci-
12 fled in subsection (c), above, are notified of any significant
13 change in a previously-approved special activity, or any sig-
14 nificant undertaking pursuant to a previously-approved find-
15 ing, in the same manner as findings are reported pursuant to
16 subsection (c), above.
17 "(e) As used in this section, the term 'special activity'
18 means:
19 "(1) any operation of the Central Intelligence
20 Agency conducted in foreign countries, other than ac-
21 tivities intended solely for obtaining necessary intelli-
22 gence; and
23 "(2) to the extent not inconsistent with subsection
24 (1), above, any activity conducted by any department,
25 agency, or entity of the United States Government in
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AU
1 support of national foreign policy objectives abroad
? 2 which is planned and executed so that the role of the
3 United States Government is not apparent or acknowl-
4 edged publicly, and functions in support of such activi-
5 ty, but which does not include diplomatic activities or
6 the collection and production of intelligence or related
7 support activities".
8 SEC. 3. 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 the number "501" in
11 subsection (a)(2) of such section and substituting in lieu there-
12 of "503"; and is further amended by adding the following
13 new subsection (d):
? 14 "(d) No funds appropriated for, or otherwise available
15 to, any department, agency, or entity of the United States
16 Government, may be expended, or may be directed to be ex-
17 pended, for any special activity, as defined in subsection
18 503(e), above, unless and until a Presidential finding required
19 by subsection 503(a), above, has been signed or otherwise
20 issued in accordance with that subsection.".
?
$ 1721 ES
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AL
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1 SEC. 4. Section 503 of title V of the National Security
2 Act of 1947 (50 U.S.C. 415) is redesignated as section 505
3 of such Act.
Passed the Senate March 15 (legislative day, March
14), 1988.
Attest:
S 1721 ES
Secretary.
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? loam. amparuncni v austecr 40"' I Ar 404
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Office of Legislative and Intergovernmental Affairs
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Office of the Assistant Attorney General
Washingron, D.C.
June 9, 1987
Representative Matthew F. McHugh
Chairman, Subcommittee on Legislation of the
House Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
lag
This letter presents the views of the Department of Justice on
H.R. 2013, a bill relating to the system of congressional oversight
of intelligence activities. The Department of Justice opposes
enactment of this legislation because we believe it would unconsti-
tutionally intrude on the President's authority to conduct the
foreign relations of the United States.
1101 H.R. 2013 would make substantial revisions of both the con-
ress Hughes-Ryan
reporting requirements of the National Security Act and
S Amendment. Besides appearing to broaden the con-
gressional notification requirements, section 3 of H.R. 1013 would
delete from section 501(a) of the National Security Act the present
express acknowledgment that the Act imposes reporting requirements
on the President only insofar as the requirements are consistent
with is authorities and duties under the United States Constitu-
tion.'*" It would also delete the Act's provision acknowledging the
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Section 501(a) presently provides (emphasis added):
To the extent consistent with all applicable
authorities and duties, includino those conferred by
the Constitution upon the executive and leoislative
branches of the Government, and to the extent
consistent with due regard for the protection from
unauthorized disclosure of classified information
and information relating to intelligence sources and
methods, the Director of Central Intelligence and
the heads of all departments, agencies, and other
entities of the United States involved in
intelligence activities shall --
(1) keep the Select Committee on Intelligence of
the Senate and the Permanent Select Committee on
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President's independent constitutional authority, namely section
01(b), which provides for presidential discretion in deferring..
tics to CcIngress concerning exceptionally sensitive intelligence
tivities.` In place of the current Act's provision acknowledging
the President's authority to provide 'timely notice' in such sensi-
tive situations, section 3 of H.R. 1013 would purport to require
that such notice be given within 48 hours after the initiation of
such operations.
Section 2 of H.R. 2013 goes even further with respect to
operations involving the Central Intelligence Agency. It would
purport to require that copies of Hughes-Ryan 'findings' be pro-
vided to certain executive branch officials and that this be dove
before the initiation of any operation requiring such findings."'
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1 Cont. Intelligence of the House of
Representatives . . . fully and currently informed
of all intelligence activities which are the
responsibility of, are engaged in by, or are
carried out for or on behalf of, any department,
agency, or entity of the United States, including
any significant anticipated intelligence activity,
except that (A) the foregoing provision shall not
require approval of the intelli9ence committees as a
condition precedent to the initiation of any such
anticipated intelligence activity, and (B) if the
President determines it is essential to limit prior
notice to meet extraordinary circumstances affecting
vital interests of the United States, such notice
shall be limited to the chairman and ranking
minority members of the intelligence committees,
the Speaker and minority leader of the House of
Representatives, and the majority and minority
leaders of the Senate.
Needless to say, deleting the underscored language would be only
symbolic and could not alter the constitutional rights or duties of
either branch.
2
Section 501(b) currently provides (emphasis added):
The President shall fully inform the intelligence
committees 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.
3 The Hughes-Ryan amendment, 22 U.S.C. 2422, provides in its
present form:
No funds appropriated under the authority of
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While the 48-hour provision of the new section 501(e) of the
National Security Act would apply to congressional notification of
be "Hughes-Ryan" operations, this unprecedented requirement of I'
firfication of subordinate executive brprich officials appears to
se an absolute rule of prior notice.
Zn keeping with the long-standing view of Presidents of every
Administration that has considered this issue, the Department
believes that these provisions of H.R. 1013 are unconstitutional.
As you know, these same issues were the subject of thorough debate
and extensive negotiation in 1980. when Congress was considering
proposals for intelligence oversight legislation. It was the
position of the Administration then, as it is of this Administra-
tion now, that there may be exceptional occasions on which the
President's exclusive and inalienable constitutional duties in the
area of foreign affairs would preclude him from giving prior notice
of very sensitive intelligence-related operations.
This Administration, like prior Administrations, is anxious to
work with Congress in devising arrangements to satisfy the legiti-
mate interests in legislative oversight. But the executive branch
in 1960 recognized that there is a point beyond which the Consti-
tution simply would not permit congressional encumbering of the
President's ability to initiate, direct, and control the sensitive
national security activities at issue here. Testifying before the
Senate Select Committee in 1960, then CIA Director Stansfield
Turner emphatically pointed out that the prior notification then
being considered 'would amount to excessive intrusion by the
Ilkongress into the President's exercise of his powers under the
nstitution." See National Intelligence Act of 1980: Hearings
fore the Senate Select Committee on Intelligence, 96th Cong., 2d
Sess. 17 (1980).
The Constitution confers on the President the authority and
duty to conduct the foreign relations of the United States. Covert
intelligence-related operations in foreign countries are among the
3 Cont. this chapter or any other Act may be
expended by or on behalf of the Central
Intelligence Agency for operations in foreign
countries, other than activities intended
solely for obtaining necessary intelligence,
unless and until the President finds that each
such operation is important to the national
security of the United States. Each such
operation shall be considered a significant
anticipated intelligence activity for the
purpose of section 413 of title 50 [i.e.,
section 501 of the National Security Act].
4 Section 2 of H.R. 1013 also requires that the national security
finding be in writing. We do not, however, interpret this to mean
Aithat signed copies of the finding must be provided to Congress or
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most sensitive and vital aspects of this duty, and they lie at the
very core of the President's Article II responsibilities. In this
'otter the Department will not seek to detail all the authorities
11111 precedents relevant to our conclusion that an absolute prior
ice requirement of the kind proposed in H.R. 1013 would be
onstitutionel. In summary, however, the Department believes
that the Constitution, as confirmed by historical practice and
clear statements of the United States Supreme Court, leaves the
conduct of foreign relations, which must include foreign intelli-
gence operations, to the President except insofar as the Consti-
tution gives specific tasks to the Congress.
The principal source for the President's vide and inherent
discretion to act for the nation in foreign affairs is section 1 of
article II of the Constitution wherein it is stated: 'The execu-
tive Power shall be vested in ? President of the United States of
America.' The clause has long been held to confer on the Presi-
dent plenary authority to represent the United States and to pursue
its interests outside the borders of the country, subject only to
limits specifically set forth in the Constitution itself and to
such statutory limitations as the Constitution permits Congress to
Impose by exercising one of its *numerated powers. The President's
executive power includes all the discretion traditionally available
to any sovereign in its external relations, except insofar as the
Constitution places that discretion in another branch of the
government.
Before the Constitution was ratified, Alexander Hamilton
xplained in The Federalist why the President's executive power
4111 uld include the conduct of foreign policy: 'The essence of the
gislative authority is to enact laws, or, in other words to
rescribe rules for the regulation of the society; while the
execution of the laws and the employment of the common strength,
either for this purpose or for the common defense, seem to com-
prise all the functions of the executive magistrate.' See The
Federalist No. 75, at 450 (A. Hamilton) (C. Rossiter ed. 1961). By
recognizing this fundamental distinction between 'prescribing rules
for the regulation of the society' and "employing the common
strength for the common defense' the Framers made clear that the
Constitution gave to Congress only those powers in the area of
foreign affairs that directly involve the exercise of legal
authority over American citizens. As to other matters in which the
nation acts as a sovereign entity in relation to outsiders, the
Constitution delegates the necessary authority to the President in
the form of the "executive Power.'
The authority of the President to conduct foreign relations
vas first asserted by George Washington end acknowledged by the
First Congress. Without consulting Congress, President Washington
determined that the United States would remain neutral in the war
between France and Great Britain. The Supreme Court and Congress,
4111 A Cont. to subordinate executive branch officials.
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too, have recognised the President's broad discretion to act on
',is ovn initiative in the field of foreign affairs. In the .
Reding case, Wilted States v. Ol_t_plAri - LIOILIAMASURA., 299
304 (1936), the Court drew a sharp distinction between the
sident's relatively limited inherent powers to act in the
omestic sphere and his far-reaching discretion to act on his own
authority in managing the external relations of the country. The
Supreme Court emphatically declared that this discretion derives
from the Constitution itself, stating that 'the President (is) the
pole organ of the federal government in the field of international
relations -- a power which does not reauire as a basis for its
exercise an act of Congress.' 299 U.S. at 319-320 (emphasis added).
Moreover, as the Curtiss-Wrioht Court noted, the Senate Committee
on Forei9n Relations acknowledged this principle at an early date
in our history, stating that 'the President is the constitutional
representative of the United States with regard to foreign na-
tions.' The Committee also noted 'that (the President's consti-
tutional) responsibility is the surest pledge for the faithful
discharge of his duty' and the Committee believed that 'interfer-
ence of the Senate in the direction of foreign negotiations [is)
calculated to diminish that responsibility and thereby to impair
the best security for the national safety.' 299 U.S. at 319
(quoting U.S. Senate, Reports, Committee on Foreign Relations, vol.
8, p. 24 (Feb. 15, 1616)). Curtiss-Wright thus confirms the
President's inherent Article II authority to engage in a vide
range of extraterritorial foreign policy initiatives, including
intelligence activities -- an authority that derives from the
.2onstitution, not from the passage of specific authorizing
Illirgislation.
Despite this vide-ranging authority, Presidents have been
careful to consult regularly with Congress to seek support and
counsel in matters of foreign affairs. Moreover, we recognize that
the President's authority over foreign policy, precisely because
its nature requires that it be vide and relatively unconfined by
preexisting constraints, is inevitably somewhat ill-defined at the
margins. Whatever questions may arise at the outer reaches of his
power, however, the conduct of secret negotiations and intelligence
operations lies at the very heart of the President's executive
power. The Supreme Court's Curtiss-Wright decision itself notes
the President's exclusive power to negotiate on behalf of the
United States. The Supreme Court has also, and more recently,
emphasized that this core presidential function is by no means
limited to matters directly involving treaties. In United States
v. pixon, 418 U.S. 683 (1974), the Court invoked the basic Curtiss-
?riot distinction between the domestic and international contexts
to explain its rejection of President Nixon's claim of an absolute
privilege of confidentiality for all communications between him
and his advisors. While rejecting this sweeping and undifferen-
tiated claim of executive privilege as applied to communications
involving domestic affairs, the Court repeatedly and emphatically
stressed that military or diplomatic secrets are in a different
category: such secrets are intimately linked to the President's
rticle II duties, where the 'courts have traditionally shown the
IP'
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ptmost deference to Presidential responsibilities.' 418 V.S. at
710 (emphasis added).
We are unaware of any provision of the Constitution that
affirmatively authorizes Congress to have the role provided in H.R.
1013. Congress' implied authority to oversee the activities of
executive branch agencies is grounded on Congress' need for infor-
mation to consider and enact needful and appropriate legislation.
Congress in the performance of this legislative function, however,
does not require detailed knowledge of virtually all intelligence
activities particularly prior to initiation. Oversight of ongoing
operations has the potential to interfere with the ability of the
President to discharge the duties imposed on him by the Consti-
tution. Accordin9ly, the President must retain his constitutional
discretion to decade whether prior notice, in certain exceptional
circumstances, is not appropriate.
Since the current legislation was adopted in 1980, of course,
the President has provided prior notice of covert operations in
virtually every case. Moreover, in acting to implement the recom-
mendations of the Tower Board, the President recently reaffirmed
his committment to the current statutory scheme of notification.
See the text of National Security Decision Directive No. 266, which
accompanied the President's message to Congress of March 31, 1987.
The Department of Justice also objects to Section 2 of H.R.
1013, which would purport to require that the President furnish
copies of his national security findings to the Vice President, the
Secretary of State, the Secretary of Defense, and the Director of
Central Intelligence before the initiation of any operation
requiring a Hughes-Ryan finding. Like the congressional prior
notice requirements, though for somewhat different reasons, this
provision is inconsistent with the President's constitutional
authority. By requiring certain of the President's subordinates to
be notified of covert actions before they occur, this proposal
would infringe on the President's prerogatives as head of a unitary
executive branch to exercise full discretion in consulting and
communicating with his subordinates.
The Constitution places the whole executive power in the hands
of the President. In contrast to political systems that employ
some form of cabinet government, our Constitution is based on the
principle of the unitary executive. It is worth emphasizing that
the Framers deliberately chose this principle and deliberately
rejected the cabinet (or privy council) alternative, with which
they were quite familiar from British practice and from the consti-
tutions of most of the original states. Indeed Article II, section
2, of the Constitution provides that the President ?my require the
Opinion, in writing, of the principal Officer in each of the execu-
tive Departments, upon any Subject relating to the Duties of their
respective Offices' (emphasis added). Plainly, it is the President
who decides when he requires the advice of others in the Executive
Branch and which persons he will consult. Neither his authority to
seek advice from such officials as he may choose nor the manner in
which he makes such consultations may be circumscribed by Congress.
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The Framers' two main reasons for choosing to create a unitary
executive were complementary and mutually reinforcing. First,
0fhey thought that for the executive branch, in sharp contrast to
he legislative branch, rapid and decisive decision-making is suf-
iciently important that it outweighs the inevitably concomitant
danger that rash or ill-considered actions viii be undertaken. See
The Federalist No. 70, at 423-24 (A. Hamilton) (C. Rossiter ed.
1961). Second, the Framers believed that unity in the executive
would promote what today we call 'accountability.' As Alexander
Hamilton pointed out, the more that the executive power is watered
down and distributed among various persons, the easier it is for
everyone concerned to avoid the blame for bad actions taken or for
desirable actions left undone. See Te Federalist No. 70, at 427
(A. Hamilton) (C. Rossiter ed. 1961)." Certainly, it would be
unwise, as yell as unconstitutional, to move our governmental
institutions in a direction that could lead to less presidential
accountability.
Of course, we acknowledge that consultation with the members
of the National SecuEity Council would almost always be a prudent
presidential policy." We object only to undertaking to make such
consultation a legal obligation. As a constitutional matter, there
is no difference between the subordinate officials listed in this
bill and thousands of other executive branch officers. If one
statute could require the President to notify any of them of his
national security findings prior to initiating a covert operation,
another statute could just as easily require him to notify other
subordinates, or all of them. Thus, given the Constitution's
1111 creation of a unitary executive, the cabinet notification require-
ments in section 2 of this bill, like the congressional notifica-
tion requirements discugsed earlier, are inconsistent with Article
II of the Constitution.'
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5 The Framers also believed that placing the whole of the
executive power in one man was usefully 'conducive' to secrecy -- a
consideration directly relevant to H.R. 1013. See The Federalist
No. 70, at 424 (A. Hamilton) (C. Rossiter ed. 1961).
6 Indeed, in keeping with past practice,
directed that 'proposed covert actions .
NSC participants, including the Attorney
tive recommendations communicated to the
266 (March 31, 1987).
7 The requirement in section 2 of H.R. 1013, that the national
security finding mandated by the Hughes-Ryan Amendment be in
writing also raises questions insofar as it has some potential to
interfere vith the President's discretion in choosing how to run
his own office. On the other hand, because this provision does
serve the legitimate purpose of facilitating after-the-fact
congressional oversight, it is the least objectionable feature of
H.R. 1013.
the President has
. . be coordinated with
General, and their respec-
President ? . ? ." NSDD
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In closing, the Department notes that when proposals similar
to those in M.R. 1013 were introduced in 1979 and 1980, it was
recognised that no President has either the right or the power-to
410 alter the Constitution's allocation of powers among the Institu-
tions of our government. This view was correct then and is correct
now.
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The Office of Management and Budget has advised this Depart-
ment that it has no objection to the submission of this report to
Congress.
Sincerely,
601e6tr?
hn R. Bolton
Assistant Attorney General
Office of Legislative Affairs
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