HEARING ON H.R. 3665, "OFFICIAL ACCOUNTABILITY ACT OF 1987 BEFORE THE CRIMINAL JUSTICE SUBCOMMITTEE, HOUSE JUDICIARY COMMITTEE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00005R001100110029-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 57
• Document Creation Date: December 27, 2016
• Document Release Date: November 14, 2012
• Sequence Number: 29
• Publication Date: June 15, 1988
• Content Type: MEMO

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MEMORANDUM. FOR THE RECORD
SUBJECT
STAT
OCA 88-2189,
15 June 1988
Hearing?on'H.R. 3665, "Official Accountability Act
of 1987-.Be.fore the Criminal Justice Subcommittee,
House Judiciary Committee
1. On 15 June 1988,: at 1000 hours, in Room 2237 Rayburn
House Office Building, I attended an open.hearing on
legislation to provide criminal penalities for violations of
.law by government officials involved in intelligence
operations (HR 3665). The open hearing was chaired by
Representative John Conyers (D., MI). Also in attendance were
Representatives George Gekas (R., PA) and Don Edwards (D., CA).
2. The witnesses,were divided into two.Panels. Panel I
consisted of Professor Loch Johnson, Political Science
Department, University of Georgia; Professor Harold Hongju
Koh, Yale University School of Law; and Gary Stern, Research
Associate, American Civil Liberties Union. They each gave an
.opening statement (attached). Panel II participants were to
be Professor Thomas Franck, center for international Studies,
New York University School of Law; 'Professor-Richard Falk,
Center for International Studies, Princeton. University; and
Professor Jules Lobel, University of Pittsburgh School of
Law. Falk and Lobel statements are attached, although I did
not attend this portion of the hearing.
3. The Committee broke for a vote, after which they also
planned to recess for lunch, so I was unable to stay for the
question and answer period.
4. 'Unfortunately, during . the. time that I was in'
attendance at this hearing, there was no mention of whether
this bill would move forward anytime in the near future.
House Affairs
Office of-Congressional Affairs
STAT
Distribution:
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1 - TrW rhrono
HA/OCA:
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RE:
DATE:
TIME:
ROOM:
SUBCOMMITTEE ON CRIMINAL JUSTICE
COMMITTEE ON THE JUDICIARY.
H.R. 3665, "Official Accountability Act
Wednesday, June 15, 1988
2237 Rayburn
House Office Building
Professor Loch.. Johnson, Political
University 'of Georgia, Athens Georgia;
Professor . Harold Hongju Koh, Yale University School of.
Law, .New Haven,, Connecticut; and
Mr. Gary Stern,., Research. Associate, American:Civil
Liberties Union, Washington, D.C.;
PANEL II
Professor Thomas Franck, Center for International
Studies, New York University School of Law, New
York, New ,York;
/`Professor Richard Falk, Center for, International
Studies, Princeton University, Princeton, New
Jersey; and
Professor Jules Lobel, University of Pittsburgh School,
of Law, Pittsburgh, Pennsylvania
Science Department,
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,PREPARED TESTIMONY
AND
STATEMENT FOR THE RECORD
OF
DIRECTOR..
WASHINGTON OFFICE,. AMERICAN CIVIL LIBERTIES UNION
ON
H.R. 3665,
BEFORE THE
R,ESEARCH.ASSOCIATE
GARY M.: STERN
AMERICAN CIVIL` LIBERTIES UNION
SUBCOMMITTEE ON
HOUSE JUDICIARY COMMITTEE
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AND
MORTON H. HALPERIN
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a
We very much. appreciate this, opportunity to
testify on-
behalf of the American Civil Liberties Union on H.R. 3665. The
ACLU is a non-partisan organization of over 2.50,000 members
dedicated to the defense and enhancement of civil . liberties
guaranteed by the Bill of Rights.
H.R. 3665 seeks to.impose criminal penalties-for government
officials who commit national security offenses. The ACLU
supports criminal penalties for officials who violate the law in
the. course"of.their official duties. Criminal penalties
reenforce the rule of.law as the. guiding principle of our
democratic government and embolden the precept that no person is
above the law. Such penalties first serve to deter those
officials,-who may be tempted, from engaging in illegal
activities. But they also help those officials who maybe
pressured into an illegal action to resist such pressure by
citing the'law and the penalties they might incur.
The Iran-Contra affair vividly demonstrated the lengths that
government officials will go to circumvent the law for what they
believe is a.higher purpose, when they feel that they can get
away with it. Indeed, Colonel North testified that he was fully
willing to be the "fall guy"'and take all,the political heat when
the operation became public, but that never in his "wildest
dreams or .nightmares" did he envision that he would be subject to
criminal liability. Had he known, he likely would not have
carried out his covert mission.
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It is essential that Congress make the law clear on this
f
issue. Many people, North included, discounted the intent of the
Boland amendment by asserting that if Congress had really been
serious-it.would have made it a crime not to violate it. While
the indictments handed down pursuant to Judge Walsh's
investigation show that the present laws.already make it a crime
to conduct an illegal covert operation, we believe that the law
should now be drafted to apply directly to the conduct of covert
action so that future Colonel.Norths will be on notice.
Accordingly, we strongly support amending, the present.and pending
Intelligence Oversight Acts to include criminal penalties for
anyone who engages in a covert operation that does not comply
with the reporting requirements.
Yet, criminal penalties deal only with the after effects of
an illegal covert operation. They do not, however, get at the
more fundamental problem, which is the incongruity of conducting
secret covert operations in an, open democratic society. Thus, in
addition to criminal penalties, we urge the Congress to consider
imposing certain substantive limits on the use of covert
operations as an.instrument of U.S. foreign policy--for example,
a statutory ban , on assassinations, on the overthrow of
democratically elected governments, and, most importantly, a ,ban..
on the use or support of covert paramilitary operations.
The ACLU holds the position that the United States should
not engage in any covert operations This position is gaining
wider acceptance by many foreign policy specialists. This past
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winter,.for example, former Secretary. of Defense Clark Clifford
testified before both the'House and Senate Intelligence
Committees that."on balance covert activities have harmed. this
country more than they have helped us," and that "unless' we can
Covert operations not only make for bad foreign policy, they
abandon them."
control covert activities once and for all, we may wish to
also invariably subvert democratic government by breeding.
disrespect'for truth and the rule of law. To keep a covert
operation secret, government officials must necessarily lie to
the public. Once,-down that road, they are compelled to lie to
Congress, to'other agencies, and even to one another, not only to
,keep the secret, but also to maintain control and power over
their realm of policy. Having succeeded so well.on the path of
secrecy and deception, it does not take much for such officials
to believe that they can also break the law and get away with it.
Such is the story of Iran-Contra, as it was with the secret
bombing of Cambodia. and the Watergate scandal beforehand, and as
it inevitably will be when some future President relies on covert
action to conduct foreign policy.
The ACLU has'of.late spent some time trying to figure out
how to translate our.opposition to covert action into a concrete
legislative proposal. Our conclusion is that as a first step
Congress should prohibit-the use or support of covert
paramilitary operations by requiring that all-.such.operations.be
publicly debated and Congressionally approved. (I have attached
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.to this. testimony _a copy of an article addressing this issue,
f
-which I.request be included in the-record.)
The decision to take sides in a military conflict, in any
form, is one of.the.most important decisions for the government
to make. In.a democratic society, that decision must be made
openly,. and must have the support of Congress, whose power it is
to declare war. We would argue that Presidents conduct
paramilitary operations covertly not to hide.the United States's
role from the adversary (that fact is virtually impossible to
keep.secret), but to hide it from the American people and the
Congress; covert. operations are a convenient and,tempting
shortcut around the procedural constraints inherent in.and
demanded by our democratic system.`
As Robert McFarlane conceded in his testimony at the Iran-
Contra hearings, the President and his advisors "turned to covert
action [in Nicaragua] because they thought they could not get
Congressional support for overt activities." The same was true
in. Laos in 1963, Angola in 1975, and Iran in 1985. Henry
Kissinger testified to the Church Committee that the President
used a covert operation to fight the war in Laos "because it was
less . accountable." When Congress.found out about the Angola,
operation, it stopped it. Had Congress found out.about the sale
of weapons to Iran, it, almost certainly would have stopped that
Conversely, where Congress supports' a paramilitary
.operation,
such as the operation. in Afghanistan
its public
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approval need in no way undermine the continued-effectiveness o
the program. We would argue that as longas.the substantive
.goals of the operation receive public scrutiny, the operational
details--the quantity and quality of the assistance, as well as
the names of third countries who do not want their identities
revealed--can remain secret.
But, to the'extent that Congress continues to permit the use
of covert operations, it must do so in accordance with strict
reporting. and oversight procedures, which should include. criminal
penalties for the knowing and willful failure to abide by these
requirements. Thus the. ACLU supports the Intelligence Oversight
Act of 1988 as it. was reported out of the House Intelligence.
Committee. That bill represents an important step forward from
existing law for purposes of oversight and consultation.
However, the bill faces a serious impediment. An amendment
is currently being considered that would for the first time
create criminal penalties for the unauthorized disclosure of
classified intelligence information--a leak'statute._ Never
before has Congress enacted such a sweeping law that would
penalize the disclosure of: information to the public or the
press.- While many members of Congress feel there may be a
problem with leaks, this amendment-is excessive in the-way-that
it encroaches on Congressional prerogatives
as well as on First
Amendment rights. Congress should not enact any legislation of
this kind without conducting a thorough analysis of the issue in
hearings and ensuring full protection' for the press.
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The Judiciary Committee in particular-should exercise its
?
jurisdiction over a criminal leak statute of this kind. I.urge
Members of this' Committee. to give careful. consideration to this.
amendment before itis attached to the Intelligence Oversight
'Mr. Chairman, I thank you again for holding these hearings
and for providing .the ACLU an opportunity to testify.
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STATEMENT OF DR. LOCH K. JOHNSON,
PROFESSOR OF POLITICAL SCIENCE
UNIVERSITY OF GEORGIA
Former . Assistantto the Chairman,
Senate Select Committee on Intelligence;
.Former Staff Director,
Subcommittee
on Oversight,
U.S. House Permanent Select Committee on Intelligence
"Foreign Policy and the Rule of Law: Some Historical Notes"
Testimony. Before the House Judiciary Subcommittee on Criminal Justice
Representative John Conyers, Jr.,, Chairman
June 15, 1988
Mr. Chairman, I am honored to be a member of this distinguished
panel assembled here to examine a proposed law entitled the "Official
Accountability Act" (H.R. 3665). The purpose of.this bill, introduced
by you on.November 20, 1987, is "to. provide for criminal penalties for
Government officials who commit national security offenses."
consideration of recent foreign-policy violations indicates why a
measure like the one you offer is-in order. Foreign policy is a vast
domain and time is limited, so allow me to focus on intelligence
operations--only one portion of-whole, yet often at the
controversy over the abuse of national-security powers.
Democracy and Intelligence
center of
The central theme in my remarks this morning can be stated
succinctly: democracy and secret intelligence. organizations, despite
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their seemingly inherent antithesis, can exist safely, and effectively.
within the same society--but only with the most careful precautions.
This tension between the concern of some, on the one hand,-about the
proper supervision of the intelligence agencies and, on the other hand;
a willingness by Others to let them operate in full secrecy, lies at the
heart of the dilemma addressed by H.R. 3665. "While there is a strong
public interest in the public , disclosureof the functions. of
governmental agencies," a senior official in the Central Intelligence.
Agency (CIA) once put it, "there. is also a strong public interest in the
effective functioning of an intelligence. service."
Democracy and intelligence, in a word, represent values that, 'are in
conflict, pulling one against the other. Democracy rests on the'
assumption that government should be conducted openly, that decision
,should be preceded by wide public debate, that the rule of law is more
trustworthy than the rule of man, that officials ought to be held
accountable for their acts. Ours is "a government of laws and not of
.men," wrote-John Adams into the Massachusetts state constitution in
1780. In contrast, intelligence operations depend upon secrecy and
limited debate, and often involve the violation of ethics and laws in
those countries overseas where U.S. agents operate,'as well as the use
of tactics or "dirty tricks" that seem.fa.r removed from-the accepted
philosophical tenets of democratic theory--lying,"sabotage, even
clandestine warfare and assassination in times of peace.
One possible response to the democracy-versus-intelligence dilemma
isto'eliminate, or, sharply curtail, U.S. intelligence operations. Yet,
to abolish or emasculate-the intelligence agencies would be an act of
folly, for while they can--and have--posed a threat to democracy from
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within,. they also provide a vital protection for democracy against
serious. threats from abroad. Here is. the paradox. And from this
paradox comes the central challenge:. to guard against intelligence
excesses anathema to an open society while, at the same time,. holding
high the intelligence shield against dangers from beyond these shores.
In the renewed public debate stirred by the Iran-contra scandal of
1986-87, citizens of the United States and their elected representatives
must determine'what kinds of intelligence operations they are unwilling
to allow and what operations the nation must tolerate in order to
protect itself, in a world filled with enmity, terrorists, and doomsday
weapons. Responsible officials--elected and appointed--must guarantee
through vigorous program review (oversight) that the-nation's spymasters
and agents are held accountable and operate firmly within the
established boundaries. Under the provisions of H.R. 3665, those
.individuals who transgress these boundaries would, quite properly,. be
held criminally accountable for their disregard of the legal standards.
The historical records suggests that the deterrent of criminal sanctions
may be, necessary to curb the excessive zeal of some foreign-policy
officials.
Intelligence and the Law: A Stormy History
The.modern.American' intelligence community was. established by the
National Security Act of 1947, with amendments in.1949. Prior to the.
Iran-contra affair, the history of these secret agencies reflected a
three-staged evolution toward greater democratic-control. The first
phase, the Era of Trust (1947-74), was a time when the intelligence
agencies were permitted almost complete discretion to chart their own
courses, free of meaningful scrutiny by overseers in the Congress or
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even the White House. This state of benign neglect changed dramatically
in the aftermath of a series of articles published in the New York Times
throughout December of 1974. These articles. charged the CIA with the
conduct of unsavory operations against a democratically elected regime
in Chile and, more startling, with "massive" spying at.home. The
American public itself had become the object of the CIA's dark trades,
as the Orwellian vision of Big.Brother moved from the pages of.1984 to
the headlines of the nation's leading newspapers.
The second phase., the Era of Skepticism (1975-76), saw the
intelligence agencies.reel under the impact of investigations led by
.public officials on Capitol Hill and in the White House, now suddenly
skeptical about the trust they had long placed in America's secret
service. Among intelligence officers, this season of inquiry is'still
remembered painfully as the "Year ofthe.Firestorm" and the time of the
"Intelligence. Wars." The investigations released a:torrent of
information on the previously invisible side of American, government.
The extensive hearings . and' reports published by the investigators stood
several feet high and chronicled, in chilling detail, the dangers posed
by the intelligence agencies, when misused. If anyone had forgotten the
perils of hidden and ..unfettered power--despite the, still-fresh
revelations of the Watergate scandal--here were some. unpleasant
reminders.
The third phase, the Era of Uneasy Partnership (1976-86), witnessed
a closer legislative monitoring of the intelligence community and a
heightened public awareness, of its mission- a "democratization'' of U.S.
intelligence policy. The Congress created formal intelligence oversight
committees; intelligence. budgets underwent scrutiny by legislators and
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their staff; hearings, on intelligence issues became commonplace; and,
new laws tightened legislative supervision over covert action,
electronic surveillance, and-other important intelligence operations.
The fourth and current phase in the evolution of modern American
intelligence, the Era of Distrust (1986- began with press
disclosures in November of 1986 revealing the secret sale of U.S. arms
to Iran. Since the House and Senate intelligence oversight commmittees
had no knowledge of this operation before the newspaper accounts
emanating from the Middle East (replete with their allegations of CIA
.involvement), the disclosures . raised serious doubts among legislators
about the'intell.igence community's willingness to honor the new
oversight arrangements..,These arrangements-required,.by law (the
Hughes-Ryan Act of 1974 and the Intelligence Accountability Act of
1980), formal reports to the.Intelligence,Committees on secret arms-
sales and other covert actions.
Further' charges that the profits from the arms-sales may have been
channeled. through Swiss bank accounts to. finance the'contras in
Nicaragua, despite an act of Congress (the Boland Amendment) limiting-
government involvment in.the.supply of weapons to the counter-
revolutionaries, added fuel to the.'fires of criticism against the CIA
gathering strength-on Capitol Hill. With the echoes of the 1975-76
intelligence investigations still faintly lingering, the nation took up
those who advocateddemocratic controls
over the CIA and its sister agencies and those
the clock to the Era of Trust.
who favored turning.back
This thumbnail historical sketch suggests three broad conclusions.
First, intelligence oversight has varied in intensity over the years,.
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from benign neglect in its earliest stages to a marked assertiveness in
1975 when Congress began to demand a restoration of its authority across
the. board. Second, in the. decade from 1976 to 1986, intelligence. policy
became more accountable on the whole and, therefore, more democratic--
,without losing its effectiveness. And,'third, the Iran-contra scandal
revealed that serious flaws continue to exist in the established
precautions against the abuse ofpower by the intelligence agencies and
the National: Security Council (NSC). The checks put in place from
1975-80 failed to stop--or even alert Congress to--this unfortunate
operation, planned and executed by the NSC staff with support from the
CIA. The American experiment in balancing the intelligence mission.with
accountability had been dealt a serious blow. The search for improved
safeguards was taken up again, of which the bill before us is one
illustration.
Pathways
In reference to the Bourbons, Chevalier de Panat.wrote in-a letter
to Mallet-du Pan in January-of 1796: "They have learned nothing, and
have forgotten nothing." Though the vast majority of America's
intelligence. officials have served the nation with honor, skill,. and a
respect.for the law, some evidentally have learned nothing about the
importance of'accountability and have forgotten nothing about how to
evade it.. They must.be instructed anew. Toward this end, permit me to
offer a brief three-point proposal that I.think would move the nation
toward an improved balance-between democracy and accountability in. its
conduct of national-security policy.
First, Congress must clarify its reporting expectations for
foreign-policy initiatives.
The requirement of prior notification to
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the Congress for all important intelligence operations, as advocated in
the.1980 Intelligence Accountability Act (with the possibility o
limiting notice temporarily to eight congressional
extraordinary circumstances),- remains, in my view, the appropriate
standard. If,the executive branch fails to inform the Congress in
of
advance of key:initiatives, legislators will be unable to evaluate the
merits of proposals.before they.are set. in motion. The spirit of the
Constitution grants Congress an opportunity , for a fair appraisal, not
simply a fait accompli.
Second, Congress should institute legal sanctions against those who
refuse, as the . Chairman. has put it, "to abide by the principles of
legality" in the conduct of foreign policy,.and against those who lie to
congressional panels (or withhold the truth, which amounts to the same
thing). Here is where H.R. 3665 comes in to play. Its section on
"Prohibitions".(Sec._2902) ought to underscore congressional insistence
that the nation's laws must be obeyedby government officials. I would
.only modify the language slightly to include: " . . shall order,
engage, or otherwise encourage the planning of ." This would help
emphasize the point that.the NSC staff (and other entities) should not
encourage private individuals andforeign countries to violate.U.S. law
on its behalf, as occurred during the Iran-contra episode.
In Section 2904 ("Sanctions"),.the Subcommittee may want to
strengthen (b)(1) with stiffer penalties, say, "may be imprisoned for
not less than one. year nor more than ten years and may be fined not more
than $100,000 and, as an alternative to imprisonment, may.be sentenced
to an equivalent period of. civilian work . " I commend the
Chairman and the other Subcommittee members for the leadership they have
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provided with this useful measure to restore credibility to. the nation's
Third, and a larger problem that. passage of H.R. 3665 should help
address but which it cannot alone correct, lies in the continuing
unwillingness of some executive officials to honor the procedural
safeguards already in place, and, as the Inouye-Hamilton Committee put
it, to "deal in a spirit of good faith with the Congress.. When asked
by congressional investigators on that-panel why he had withheld
information from the Intelligence Committees about the secret sale of
arms to Iran, the President's assistant for national security affairs,
Vice Admiral John M. Poindexter, responded: "I simply didn't want any
outside interference."
Even months after the embarrassing revelations of the Iran-contra
investigation, and following his. own admission that he, too, had lied to
Congress, the Assistant Secretary of State. for Latin American, Elliott
Abrams,.had the gall to declare publicly that a recently issued CIA
reprimand against one of its officers who had. also lied to-Congress
"would send exactly the wrong signal to'young officers. at the Agency."
In fact, it sent precisely the right signal--the same one presented'. by:
H.R. 3665: that improper acts carry penalties. If a 1.'wrong signal" has
been sent, surely it comes from Abrams's continuance in office, despite
his apparent deep-seated attitude of disdain toward the entire concept
of congressional accountability.
Looking back over the events of the Iran-contra scandal, President
Jimmy Carter's national security adviser, Dr. Zbigniew Brzezinski,
recalled that withholding information about important intelligence
operations from the president (as evidentally occurred during the
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as a possibility
Admiral-Stansfield
you will, a legalistic,
Iran-contra affair) "
set in office .
simply didn't occur to us. There was, if
an ethical mind-set which simply precluded that
Similarly, Carter's former CIA Director,
Turner,
underlines the significance of "the tone you
In venturing an explanation as to how the Iran-
contra excesses could have occurred, President Ronald Reagan's former
Secretary of State, Alexander Haig,-'has commented: "An atmosphere was
created . ." The importance of a sensitive to. law and propriety among
government officials can hardly be stressed enough. As always, the
quality and integrity of office-holders, along with their attitudes
toward Congress and the give-and-take that is the hallmark of democracy,
will determine in large measure howwell America's experiment in self-
government works.
A Challenging Agenda
In light of this nation's ongoing need for an effective
intelligence service in a dangerous world., the objective must be not to
ban important foreign operations but--in so far as possible--to bring
them within a democratic framework. The remedies are well-known, though
difficult: at every level in the government, accountability will
continue to depend upon clear guidelines, timely: reporting, honest
officials, and dedicated overseers willing to invest. the time required
to review the. conduct of foreign policy--through hearings, audits,
inspections, and less formal discussions with a range of government
officials... To this list, H.R. 3665 adds.another vital ingredient:
penalities for those who insist on the adoption.of their will over the
public's will. And overarching these presciptions must be a spirit of.
cooperation between foreign policy leaders in the executive and the
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legislative branches--the "good faith" extolled by the Inouye-Hamilton
panel. With, this mixture, a-challenging but reachable goal, the United
States can enjoy both democracy and national security.
10
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HAROLD HONCJU KOH
Associate Professor of Law, Yale University
On H.R. 3665, the Official Accountability Act
Before The
UNITED STATES HOUSE OF REPRESENTATIVES
CONMI.TTEE ON THE JUDICIARY
SUBCOI1MITTEE ON CRIMINAL JUSTICE
June 15, 1988
Chairman Conyers . and. members of the Subcommittee:
I am grateful for this opportunity to offer you my views on.H.R..3665,
the Official Accountability Act, and more broadly on-the need for new
national security legislation in the wake of the .Iran-Contra,-Affair.
an Associate. Professor of Law at the Yale Law School, specializing in
international law and the Constitution and Foreign Affairs. Before coming
to Yale, I served from 1983 to 1985 as an Attorney-Adviser at the Office of
Legal Counsel. of the Department of Justice, where I worked primarily on
matters relating to international and foreign affairs law.
Let me first applaud both the. Subcommittee and its chairman for.
holding these hearings, which are long overdue. I am in the process of
completing an. article that will appear shortly in the Yale Law Journal,
which analyzes the recently completed House and Senar Select Committee..
investigations of the Iran-Contra Affair.1 In that article, which I .will
submit upon publication as a supplement to this testimony, I argue that two
competing conventional wisdoms about the Iran-Contra Affair have recently
taken hold among Members of Congress and the American public. The first,
1See Koh, "Why the President (Almost). Always Wins in Foreign
Affairs: Lessons of the Iran-Contra Affair," 97 Yale L. J.
(No. 7) (forthcoming June 1988).
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suggested by the reports of both the.-Tower Commission and the majority
members of the Iran-Contra Committees, is that the Iran-Contra. Affair
resulted primarily from a failure of people, not laws.2 Under this view,
Congress need not now consider new national security legislation, because,
in the majority's words, "Congress cannot legislate good judgment, honesty,
or fidelity to law."3
A second, contradictory conventional wisdom, which the Iran-Contra
committees' minority members have asserted, is that the Iran-Contra
hearings represented yet another effort by Congress to ".micromanage"
foreign policy by legalizing foreign policy differences between the
political branches of the government. According to this view, a
congressional effort to enact new national security legislation would not
only be unnecessary, but in the minority's words, either ",unconstitutional
and unwise" or "unconscionably meddlesome."4
In my judgment, both of these. conventional wisdoms are false. The
first suggests that new . laws are unnecessary because our national security
system is ultimately self-regulating; the second suggests that we need no
2See Report of the Congressional Comets Investigating the Iran-Contra
Affair, S. Rep.. No. 216, H.R. Rep. No. 433, 100th Cong., lst Sess. 423
(1987) [hereinafter Iran-Contra Report.]-("the Iran-Contra Affair resulted
from the failure of individuals to.observe the law"); President's Special
Review Board, The Tower Commission Report 4 (New York Times ed. 1987) ("The
problems we examined in the case of Iran/Contra caused us deep concern.
But their solution does not lie in revamping the National Security Council
system.").
3Iran-Contra Report, supra note 2, at 423. The vast bulk of
the 690-page Report recounts facts and, legal violations,, with
only four and one-half pages.of the majority report and three
pages.of the minority report discussing. recommendations for
legislative reform. See id. at 423-27.;. 583-.85.
4Id. at 583 (minority report).
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new laws because that system is
currently. over-regulated. I disagree with
both conclusions. In my view, the Iran-Contra Affair revealed that our
national security system is inadequately .regulated.. The Affair stemmed.
neither from bad'people violating good-laws -(as the various investigators
concluded), or from good people violating bad laws (as some Administration
supporters have maintained), but from misguided people violating
ineffective laws. If, as I believe,.the Iran-Contra.Affair resulted not
just from a failure of legal. enforcement,. but amore fundamental failure of
legal structure, then the time is now ripe for Congress.to undertake a.
systematic reconsideration of the proper relationship between the
President, Congress, and the courts in foreign affairs. 'Let me explain my
conclusion by first outlining my view of the proper precedent, problem,.and
prescription for the Iran-Contra Affair,. and second, by briefly evaluating
,the merits and demerits of the current proposal.
I. The Precedent
A common misperception among many Members of Congress and the media
has been that the historical precedent for "Contragate" was Watergate. But
.if one looks back not at the.history of'presidential;scandals, but across
the spectrum of recent U.S. foreign policy concerns --.war powers, treaty
affairs, emergency economic power, arms?sales, military aid, and covert
operations -- one recognizes' that the relevant historical precedent for the
Iran-Contra Affair was not Watergate, our most recent presidential scandal,
but rather, Vietnam, our most memorable foreign policy failure.5
In. almost every important realm of foreign policy, a growing pattern
5A brief history of each of these areas is provided in Koh,
supra note
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of executive dominance in foreign affairs - the so-called."Imperial
Presidency" --.contributed to the Vietnam disaster. After Vietnam,
Congress spent the balance of the decade passing many curative statutes,
whose names are familiar to all of us: to regulate war powers, the War
Powers Resolution6; in treaty affairs, the. Case-Zablocki Act7; in the area
of emergency economic power, the International Emergency Economic Powers
Act8 and the National Emergencies Act;9 in arms sales, the Arms. Export
Control Act of l976;10?in military and paramilitary aid, the Hughes-Ryan
ll
Amendment to the Foreign Assistance Act,
Intelligence Oversight. Act of 1980.12
and in foreign intelligence, the
.II. The Problem
Accepting that Vietnam and not.Watergate was the precedent for the
Iran-Contra Affair, the real problem the Affair exposes is that the pattern
of executive avoidance of legislative constraint in foreign affairs which
led to Vietnam continues even today.. What is most striking about the Iran-
Contra Affair is that it happened even though all of these post-Vietnam era
statutes were on the books. In each of these statutes, Congress sought to
impose upon the President . certain restrictions whose. basic premises"he.
650 U.S.C. ?? 1541=1548 (1982).
850 U.S.C. ?? 1701-1706 (1982).
950.U.S.C. ?? 1601-1651(1982)'.
l0lnternational Security Assistance 'and Arms Export Control'
Act of 1976, 22 U.S.C. ?? 2751-2796 (1982).
1122 U.S.C. ?
2422
(1974).
1250 U.S.C. ?
413
(1982).,
7See Transmittal'Act, 1 U.S.C...? 112b (1982)(Case-Zablocki
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apparently did not accept. Although the President signed nearly all of
these statutes, during the Iran-Contra Affair executive branch officials
either jumped. through their loopholes or simply violated them.
This pattern has occurred not only in the spheres of covert operations
and military aid, in which the Iran-Contra Affair occurred, but also in
other areas of U.S. foreign policy. In 1973, Congress passed the War
Powers Resolution to require the President to. report and consult with
Congress before committing and maintaining U.S. armed forces in hostile
situations abroad, but today, more than a year after the Iraqi attack on
the U.S.S. Stark., Congress has still to receive a formal War Powers report
from the President regarding U.S. activities in the Persian Gulf. In 1972,
Congress passed the Case-Zablocki Act to enhance congressional involvement
in treaty. affairs, but in recent years we have witnessed this
Administration's attempt to "reinterpret" the 1972 Anti-Ballistic, Missile
Treaty without congressional input, in order to accommodate the Strategic.
Defense Initiative. In 1976 Congress passed the Arms.Export Control Act to
ensure congressional participation in approving major arms.sales, but-even
after the Iran-Contra Affair the Administration has tried to sell advanced
weapons to Middle Eastern countries over substantial congressional
objections.
In short, the Iran-Contra Affair is only the tip of a much larger
iceberg that germinated during the Vietnam War. It was Vietnam that
spurred Congress to pass the War Powers Resolution in an attempt to
regulate overt. executive warmaking. But the-Resolution only drove overt
warmaking underground, stimulating the Executive to..substitute covert for
overt operations and to transfer control of those operations from the
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military establishment to the intelligence agencies, particularly . the CIA.
Congress' regulation of the CIA through special oversight committees then
led that agency during the-Iran-Contra Affair to shift some of its
activities to an unregulated entity, the National Security Council (NSC).
When the NSC staff found its own resources inadequate to'execute those
covert. operations, it subcontracted its duties to private agents and
financed the payments with contributions from private parties and foreign
governments. Existing congressional restrictions on overt arms sales then
led NSC officials and their delegates to sell arms to Iran covertly. And
after the Boland Amendments13 restricted official U.S. funding to the
contras, military aid was privatized. In short, the Iran-Contra Affair
illustrates a pattern familiar to any government regulator: each succeeding
congressional effort to catchup with executive evasion of. legislative
controls has served only to shift executive activity into new patterns of
evasion.
What all of this suggests is that the Iran-Contra Affair exposed
systemic, rather than localized, problems in the American foreign policy
process. Congress' general effort after Vietnam to reassert its
constitutional role across the many spheres of foreign policymaking has not
succeeded. The real unanswered questions of the Iran-Contra Affair,
therefore, are not questions of individual
responsibility "what.did the
President (or for that matter, the Vice-President) know and when did they
13The Boland Amendments, which were attached to successive
appropriations bills between 1982-and 1986, generally prohibited the
expenditure of funds ''available" to any "entity of the United States
involved in intelligence activities" for assistance to the "Nicaraguan
democratic resistance to support military or paramilitary operations in
Nicaragua." See Iran-Contra Report, supra note 2, at 395-407 (cataloging
various amendments).
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know it?" -- but rather, a more basic structural question: "why hasn't
Congress been able to force
the President to keep his bargains. in foreign
affairs?" Or,. to,put it another way,
win in national security affairs?"
"why does the ,President continue to
The answer to that question, I would argue, lies in a combination of
three institutional factors that mirror general characteristics of the
Executive, Legislative, and Judicial Branches: what I will call Executive.
Initiative, Congressional Acquiescence, and Judicial Tolerance. First, and
most obviously, the Presidency haswon-because,it has institutional
incentivesto take the initiative in foreign affairs, and in fact has often
done-so by construing laws that were enacted to constrain executive
authority as authorizing its actions. Second, the President has won
because Congress has persistently acquiesced in what he has done, which in
institutional terms. means that it has only rarely succeeded in forcing
votes on joint resolutions that challenge the President's foreign policy
actions and overriding his vetoes by more than a two-thirds vote in each
house. Third and perhaps most important, the-President has won because the
federal courts have usually tolerated his acts. The courts have condoned
the President's initiatives in two ways: either by hearing those challenges
on the merits and ruling in favor. of the President,-4 or more frequently,
by refusing to hear congressionalor private challenges , brought. against
those acts on the ground that the.plaintiff lacks standing;the defendant
is immune;;,the question is nonjusticiable, not ripe, or moot; or that
14See, e?g.,.INS.v. Chadha,.462 U.S. 919 (1983);.Dames:&
Moore v. Regan, 453 U.S. 654 (1981).
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The result 'of this three-part combination of executive initiative,
congressional acquiescence, and judicial tolerance is that in almost every
case, the President wins. If the executive branch possesses statutory or
constitutional authority to act and Congress approves or acquiesces in his
initiative, the President.. wins. If Congress does not acquiesce, but lacks
the political will. either to cut off appropriations, for an act or to
sustain a joint resolution opposing that act over a presidential veto, the
President again wins. If a.Member of Congress or a private individual
attempts to challenge the President's action in`cour.t, the courts will
likely refuse to hear that challenge on justiciability grounds. And even
if the plaintiffs somehow surmount all judicial obstacles'and persuade the
courts to.hear their challenge on the merits, the courts will usually rule
in the President's favor. So whatever the scenario, the bottom line is the
.same: the President almost always.seems to win in foreign affairs: As the.
Iran-Contra Affair illustrates,.over time this state of affairs has
increasingly insulated executive branch judgments from external scrutiny by,.
either Congress-or the courts, making it increasingly difficult to hold
executive officials accountable for their acts.
.III. The Prescription
If these are the precedent and the. problem, what policy prescription
would prevent future Iran-Contra Affairs? Although the Tower Commission-
and the Iran-Contra committees focused almost entirely on the institutional
sources of executive adventurism within the executive'branch, my analysis
159ee, e.g. . Conyers v. Reagan, 765 F.2d 1124-.(D.C. Cir.
1985); Lowry v. Reagan, 676 F. Supp. 333 (D.C.D.C. 1987).
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suggests that:any legislative effort should also.focuson
the sources of
undue congressional acquiescence and judicial tolerance, which have
contributed equally to recent executive excesses. To succeed, new
legislation must seek to restore the constitutional equilibrium of the.
national security system not only by restraining the Executive, but also by
increasing the participation of both Congress and the courts. in foreign
policy decisionmaking, thereby revitalizing those branches as institutional
counterweights to the President.
I do not say this to encourage either congressional micromanagement or
imprudent judicial activism in foreign policy matters. All I am saying is
that any new legislation . should aim at reducing the isolation that
currently surrounds executive branch activities, enhancing internal
executive branch deliberations, and increasing congressional-executive
dialogue while basic foreign policy objectives are being set.and particular
policy initiatives are being implemented.
How, concretely, should this be.done? Although the bill before us
laudably tries. to promote some of these ends, I think.the Iran-Contra
Affair demonstrates ,that even more ambitious legislation is necessary.
What we really-need is a new national. security "charter".-- what Professor.
Gerhard Casper has called "framework" legislation16 that would attempt
16"[C]onstitutional 'framework' legislation .
interprets the Constitution by providing a legal framework.for
the governmental"decisionmaking process." Casper,
"Constitutional Constraints on . the Conduct of Foreign and, Defense
Policy: A Nonjudicial Model," 43 U. -Chi.L. Rev. 463, 482
(1976). Accord Casper, "The Constitutional Organization of the
Government," 26.Wm. & Mary L. Rev. 177, 187-93 (1985)(including
National Emergencies Act of 1976, Congressional Budget and
Impoundment and Control Act of 1974, and War Powers Resolution, as
examples of such framework statutes).
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to reorganize the policymaking process across ' several' fields of foreign
affairs. To those who would say that Congress could never agree upon such
omnibus national security legislation, let m.e point out that Congress
enacted precisely this kind of charter legislation. forty years ago,,when it
passed the National Security Act of 1947. That statute created the.
National Security Council, the.Central Intelligence Agency, the Joint
Chiefs of_Staff, and the Department of Defense. In 1947, Congress made one
great.error: it failed to define either its own role or the role of the
courts in the national security system Although Congress partly redressed
those omissions in the laws it passed after Vietnam, I would argue that the
time is now ripe for a new National Security Reform Act of 1988 -- like' the
Tax Reform Act of 1986, the Gramm-Rudman-Hollings budget reform
legislation, or the Trade Reform Act that.Congress is still attempting to
pass -- which would redefine. the role that all three branches play, in our
national security system.
How broad should such legislation be?
Ideally, such a framework
the patchwork of statutes,
security decision directives, and informal
,statute would replace
executive. orders,-national
accords that currently govern
national security affairs by reenacting in
five separate titles the War
Powers Resolution, the International' Emergency Economic. Powers Act, the
Arms Export Control Act, the Intelligence Oversight Act, and the provisions
of the 1947 National Security Act that govern the structure.and operation
of the National Security Council. At the same time, the charter should
repeal other obsolete statutes, such as the so-called "Hostage Act of
1868,'17 to which Oliver North made reference during the Iran-Contra
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Affair, and address questions regarding congressional-executive
consultation in the making of international agreements, internal
intelligence agency control procedures, and judicial review of executive
action in. foreign affairs.
.Now is not the time to detail every provision of such a national
security charter; my forthcoming article suggests .a number of specific
legislative-reforms that I believe Congress should consider. To encourage
fuller internal executive.branch examination of the legality of proposed
covert actions, for example, I suggest a general statutory requirement of
interagency review of executive branch legal opinions that authorize covert
actions. To lessen congressional ignorance of or acquiescence in executive
acts., I recommend the creation within Congress of.a core group.of Members -
- perhaps the majority and minority leaders of each House and the chairmen
and ranking members of the existing armed services, foreign affairs,
intelligence, and judiciary committees
with whom the-President and his
staff could regularly meet and consult on national security matters. I
also suggest a formalized committee practice of,.filing written "counter-
reports" either accepting or rejecting the President's legal justification
for each war powers report or intelligence finding, to create a written
record against which Congress-may test executive claims of congressional
acquiescence., To authorize more frequen.t.judicial consideration of
challenges to executive conduct, I would recommend that new legislation
contain "congressional standing" provisions of the type that Congress
.recently placed in the Gramm-Rudman-Hollings budget-balancing bill, 18 a
18Congressman Synar invoked this clause to bring his
successful. challenge to that legislation. See Bowsher v. Synar,
106 S. Ct. 3181 (1986). To limit an influx of litigation,
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statutory cause of action to challenge violations of the omnibus law, and
provisions stating that violations of the national security statutes do not
constitute nonjusticiable ".political questions" that courts can abstain.
from deciding. Finally, to make 'these reform. proposals more palatable to
the President, I would suggest that Congress couple them to provisions that
expressly authorize the President to engage in activities for which he
currently. lacks express statutory authorization, for example, to commit
troops overseas'for the short-term purpose of rescuing endangered U.S.
citizens, or to authorize the use of covert operations under certain
carefully-specified circumstances.
IV. The Current Proposal
Let me comment briefly on where the bill before us, H.R. .3665, fits
into this broader picture. As drafted, this-bill would impose criminal
penalties upon U.S government officials or persons receiving direct or
indirect compensation from the United States who "order or. engage in the
planning of, preparation for, initiation or conduct of any` intelligence
activity which violates any statute or Executive Order in force or
international agreements to which the United States is a party".
Furthermore, the bill denies defendants the defense of superior orders
unless they "did not know, and could not reasonably have been expected to
know. that the act ordered was unlawful."
I.understand that other witnesses will speak. to the constitutionality
of the bill, which encompasses both Congress' authority under the
Constitution to enact it and the bill's. consistency with the President's
Congress could impose a statutory requirement that such suits not
be brought until an individual Member had adopted his or her
legislative remedies.
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foreign affairs authority and.a criminal defendant's. entitlement to. due
process oflaw. If you wish, I would be happy :to express my-own views on
those issues in. response to your questions. Let me speak to two different
issues: the bill's wisdom as a matter of public policy and its enforcement
-As a.matter.of public policy, I favor statutes
that impose criminal
penalties.on private adventurism abroad conducted . at: the Executive's
behest; one venerable example of such a, statute is the Neutrality Act of
1794, which prohibits private expeditions against nations with whom the
United States is at peace.-19 In Dellums v.Smith2.0, the executive branch
argued that Congress never intended to extend the Neutrality Act's
provisions. to acts of government officials. Although the Court of Appeals
in Dellums never reached that issue, this bill, if passed, would have the
salutary effect of unambiguously stating Congress. intent to subject,
executive officials to criminal liability for knowing unlawful acts. Thus,.
the bill's main advantage is that.it would provide judicially enforceable
remedies for executive violations of the foreign affairs laws.
When I .said earlier that Congress has too often -acquiesced" in the
President's actions, I meant in part that Congress has too frequently
employed ineffective legislative tools to control executive adventurism.
Most of the post-Vietnam era statutes I have described used procedural'
devices to bring executive action under control, such as sunsetting,
reporting and consultation. requirements, conunittee' oversight procedures,
1918 U.S.C. ?? 959-61 (1982).
20573 F. Supp. 1489 (N.D. Cal. 1983rev'd, 797 F.2d 817
(9th -Cir. 1986).
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legislative vetoes, and appropriations limitations, But as you know, in
1983, the Supreme Court.struck down the legislative veto.21. In the
-Iran-Contra Affair, we discovered that 'reporting reporting and consultation
requirements do not work and that even committee oversight. devices, such as
requirements of written findings, and appropriations limitations, such as
the Boland Amendment, can be circumvented by executive officials who are
.intent upon evading them. When executive officials act unlawfully, none of
the congressional control devices currently in use impose direct costs.on-
them, as this bill would do.
My major concern about the bill,. as currently drafted, is that it
extends beyond this narrow and desirable purpose to chill other types`of
legitimate activity. The bil.l nowhere defines its most crucial term, the
phrase "intelligence activity." By holding liable private persons who
conduct any business with the United States that "results in . . . a
violation" of the bill, the law imposes a heavy.burden on private persons
to familiarize themselves with all statutes,,. Executive Orders, or
international agreements of the United States and; might dissuade. them from
doing business with the U:S. for fear of later prosecution. The bill
leaves unclear whether a government official who plans activity.that will
violate a statute which is about to expire, for example, an appropriations
rider such-as the Boland Amendment, can be criminally charged for his or
her actions. Moreover, by criminalizing acts that plan or prepare to
violate Executive Orders "in force," the bill may freeze into the criminal
law Executive Orders that will soon.be rescinded. For example, the private
bankers, Federal Reserve Board officials, and'executive branch'officials
2lSee INS v.. Chadha, 462:U.S. 919 (1983).
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who planned the transfer of funds to Iran that secured the . release of
,American hostages In 1981 could arguably have been charged under this bill,
because their activities during 1980 planned transfers that were not
permitted by the presidential freeze orders that were then in force.22 -
Similarly, I,am troubled by. the breadth of the provision that.:
criminalizes intelligence, activities which violate "international
agreements to -which the United States is a party".. It is well-established
that Congress may validly enact a statute that violates, or makes it
impossible for the United States to carry out, our obligations under an
international agreement.23 One,recent controversial example may be the so-
called Grassley Amendment to Foreign Relations Authorization Act of 1988,24,
ordering the closure of the Palestine Liberation Organization missions in
the United States, which arguably violates the United Nations Headquarters
Agreement of..1947.25 If.executive branch officials took secret action
pursuant to such a.statute to, enforce its terms, they could conceivably be
charged under this bill, and would not clearly be exempted even if the
statute were later held unconstitutional or the agreement were later
validly terminated.
22
See Exec. Orders No. 12,276-82 (1981), reprinted in 50
U.S.C. ?.1701 note (1982) .(ordering transfer of frozen assets to
Iran and revoking prior executive orders prohibiting such
transfers).
23See Restatement (Third) Foreign Relations Law of the
United States ? 115 & comment a, ? 339 &:comment.a (1988).
.24See Anti-Terrorism Act of 1987, Pub.' L. No. 100-204, ??
1001-05, 101 Stat.,1331, 1406-07 (codified at 22 U.S.C. ?? 5201-
03 (1988)).
25Agreement between the United Nations and the United States
of America regarding the Headquarters of the United Nations of
June 26, 1947, 61 Stat. 3416, T.I.A.S. 16761.11 U.N.T.S. 11.
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Finally, Iam concerned about the provision in the bill generally
denying defendants the defense of superior orders unless they "did not know
and could not reasonably have been expected to know that the act ordered
was unlawful." While that prevision spares true underling's from criminal
prosecution,26 it does hit hard at high executive officials just below the
President who are charged with making countless daily decisions that tread
the lines drawn by various. noncriminal provisions of the U.S. 'Code. While
the Iran-Contra Affair . revealed the dangers of permitting such
brinkmanship, Congress. should also take care not to overdeter officials.and
chill vigorous decisionmaking, thereby encouraging excessive executive
timidity in foreign affairs.
With regard to the bill's enforcement, let me make three brief
observations. First, I cannot support proposed section 2904(a),- which
would impose the penalty of leave without pay on a defendant based solely
on probable cause of guilt, without providing for recompense.if the
prosecution later failed to prove guilt beyond a reasonable doubt. Second,
either the statute itself or the legislative history.should attempt to
reconcile the standard for invoking the superior orders defense with the
standard for official immunity for civil damages set forth by the.Supreme
Court in its 19.82 decision in.Harlow v. Fitzgerald.27 If that judicially
26Cf. U.S. v. Barker, 546 F.2d 940, 954 (D.C. Cir. 1976)
..(holding that two Watergate burglars may.defend against criminal
charge on the ground: that they. had reasonable belief that
superior who solicited their aid was duly authorized officer of
the law).
27457 U.S. 800, 818 (1982)(executive officials other than
the President are immune from civil damages for official acts.
"insofar as their conduct does.not violate-clearly established
statutory or constitutional rights of which a reasonable person..
would have known."):
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created civil immunity standard equates with this statutory standard for
criminal defense, I would ask why the criminal standard is not more
-generous If the two standards differ, I would desire . clarification of
exactly how they differ. Finally, the drafters may wish to address an
issue,raised in Dellums v.,Smith, which I have already mentioned: whether
private citizens should have standing to challenge a refusal by the
Attorney General to. conduct the preliminary investigation required under
the Independent Counsel Act to, determine whether officials covered by this
bill violated :its provisions in a particular case.28
Let me caution that none of these objections are fatal. Most of them
would be cured by revising the bill to add more detailed provisions on
enforcement, a clearer definition of "intelligence activity" and the terms
"planning,of" and "preparation for" such activity, and clarification of the
provision regarding executive orders and international agreements, which I
understand other witnesses will shortly address. To reiterate, let me :say
.that while memories of the 'Iran ContraAffair remain fresh, I believe that
Congress should seek to enact broader-and more ambitious corrective
legislation than this, namely, a comprehensive national security charter
that would restructure the incentives that executive branch officials face
when they consider. whether to violate or circumvent existing foreign
affairs laws. In modified'form, the legislative proposal before us could
constitute an important piece of that national security charter.
V. Conclusion
-The Iran-Contra Affair:has presented Congress with a window of
281n Dellums, the U.S. Court of Appeals for the Ninth
Circuit concluded.that private plaintiffs lacked such standing.
See 797 F.2d 817 (9th Cir..1986).
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opportunity to reassert itself in the. foreign affairs policymaking process
that it has not had since 1974. At that time, Congress exploited its
opportunity by legislating a broader ongoing role for itself across the
realms-of foreign policy, a role which the executive branch has since
sought systematically to undercut. Since the Iran-Contra Affair, Congress
has squandered its new opportunity to draft and pass a new national
security charter. If Congress wishes to preserve its role in national
security policymaking, the time could not be more ripe for .it to seize the
legislative-initiative.
To those who say that only a professor could think it politically
.possible to draft and enact such wide-ranging legislation, let me note that
legislative proposals exist,'the only need is for congressional interest.
Even as we speak, Senator Cohen's bill to amend the Intelligence Oversight
Act has passed the Senate with sufficient votes to override a presidential
veto and Congressman Stokes' companion bill has been reported out of the.
House IntelligenceCommittee.29 Senators Byrd, Nunn, Warner and Mitchell
have recently offered a promising bill to amend the War Powers
Resolution.30 Senator Biden and Congressman Levine have proposed
29See H.R. 3822, 100th Conga, 2d Sess.,.133 Cong. Rec.
H11866 (daily ed. Dec. 18, 1987)(introduced by Congressman
Stokes);. S. 1721,'100th Cong., 2d Sess., 133 Cong. Rec S12852
(daily ed. Sept. 25, 1987)'(introduced by Senator Cohen). At
this writing,-the Senate bill has passed the Senate by a vote of
.71-19. See N.Y.'Times,.Mar. 16, 1988,.at A8, col. 4. The House
.bill has been marked up. and reported out of the House,
intelligence committee,, andis awaiting action by the House
Foreign Affairs Committee., .;to >which it has been jointly
referred. See "'Iran-Contra' Bill Moves Closer to Passage,"
First Principles, May 1988, at 9.
3.0See S.J. Res. 232, 100th Cong., 2d Sess., 133 Cong. Rec.
S62'39 (May 19, 1988) (requiring the President, before using .
force, to consult with "Gang of S.ix" consisting of the majority
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legislation to amend the Arms Export Control Act.31 And Senator Specter
has proposed several . bills that would create a politically appointed.
director of national intelligence, reform the congressional intelligence
committees, and install an independent inspector general at the CIA.32
What Members of Congress must recognize is that all of these proposals
should be integrated because they address .different facets of the same
problem: the need to restore the constitutional and-institutional balance
in foreign affairs.. Even if only partially successful, a congressional
attempt to consider omnibus legislation along these lines. would at least
focus national attention . on. the. right precedent, problem, and prescription.
In the same way as the Gramm-Rudman-Hollings Budget-Balancing:Act and the.
War Powers Resolution constituted first cuts at constitutional line-drawing
in their respective fields, so too would new omnibus national security
legislation redefine-the way we think about national security law.
In my judgment, such ..a legislative effort could take place any time
during the early years of the next Administration. A Republican President.
eager to engage in such an exercise could:use .the concept.of'a national
security charter as a way of putting, the Iran-Contra Affair behind him; a
Democratic President could use it as a means of declaring his seriousness
and minority leaders of both Houses, the Speaker of the House and
the President. pro.tempore of the Senate and to maintain
continuing consultations. with "permanent consultative group"
composed of the Gang of Six, plus the chair and ranking minority
member of the Armed Services,,Foreign Affairs, and Intelligence
Committees of each-House).
31S. 419, 100th Cong., lst Sess. (1987); H.R. 898,- 100th.
.Gong: lst Sess. (1987).
32s
See S., 1818-, 100th Cong., 1st Sess. (1987); S. 1820, 100th
Cong., 1st Sess. (1987).
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about foreign policy reform.
But even'if the impetus for national security
reform does not come from the presidential candidates, there seems no
reason why it should not come from.Congress itself. Congress has recently
led many recent broadscalelegislative reform efforts: for example`, the Tax
Reform Act of 1986, the deregulation movement of late'1970's,and the
environmental reform movement of late 1960's. The problem of national
security reform is at least as important as any of these. Many notable
foreign affairs reforms, including the 1986 South-African sanctions bill,
the..Trade Act of 1974, and the War Powers Resolution, passed into. law
without significant presidential leadership or over presidential
opposition.. Even without strong presidential leadership, a Congress
committed to bipartisan national security reform could pass a legislative
charter that would redefine the allocation of--national security
responsibility between . the. branches for the next forty years.
The release of the Iran-Contra Committees'. report last fall should
have marked.the beginning, not the end, of Congress' efforts to deal with
the national security crisis exposed by the Iran-Contra Affair..-Let me
close by. quoting Justice Jackson's concurring. opinion in Steel Seizure
Case, which I think admirably summarizes our present situation: "A crisis
.that challenges-the President equally, or perhaps primarily,, challenges
Congress. . . We may say that power to legislate . . . belongs in the
hands of Congress, but only Congress itself can prevent power from slipping
through its,.fingers.-,33
Thank you very much for your attention.
33Youngstown Sheet'.&.Tube Co.. v. Sawyer,.343 U.S. 579, 654
(Jackson, J., concurring).
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Hearings on H.R. 3665, The Official Accountability Act
Subcommittee on Criminal Justice of the Judicial Committee
U.S. House of Representatives
Official Accountability and International Law:
Some Observations.
June 15, 1988
Statement of Richard Falk
Albert G. Milbank Professor of International Law and Practice
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At the end of World War,II.there was a strong consensus, then led by
the United States Government, that it was of great public importance to
extend notions of criminal accountability to those who acted on behalf of
the state, yet in violation of international law. Although this consensus
was built upon the bedrock of opposition to practices prevalent in Nazi
Germany and Imperial Japan, it was also forward-looking. In the course of
his celebrated opening statement at the Nuremberg tribunal, Mr. Justice
Jackson speaking as the chief U.S. prosecutor, made this famous assertion:
"And let me make clear that while this law is first applied against German
aggressors, the law includes, and if it is. to serve any useful purpose it
must condemn, aggression by any other nations; including those which sit
here now in judgment."
This expression of a commitment to extend ideas of official
accountability in.the war/peace area to the postwar reconstruction of
international political life was widely accepted at the time. as necessary,
desirable, and possible.. It was on this basis, and again: on the basis'of
U.S. leadership, that the outcome of the Nuremberg (and Tokyo) experiences
were codified as generally operative principles of. positive international
law, first in the form of a unanimously endorsed resolution of the.United
Nations General Assembly (General Asse~ibly Resolution 95 I), later
authoritatively reformulated by the highest expert. body,. the International
Law Commission. Few international. law specialists would question the
binding character of these Nuremberg Principles, which rest on the central
proposition that. individuals serving in governmental capacities cannot
excuse violations of international law in the area of national security
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policy by invoking "national interests" or the "superior orders"
political and military leaders, including those of a head of State.
.This conception of accountability to governing rules of international
law has been formally extended to govern the operations of:U.S. armed
forces. In the U.S. Army Field Manual, issued in 1956, obligations are set
forth in provisions ??498-511. It seems significant that the manual, "an
official publication of the United States Army," accepts duly ratified
international treaties: as determinative of legal obligations: "..their
[i.e. treaty] provisions must be observed by both military and civilian
personnel with the same strict regard for both the letter and spirit of the
law which is required with respect to the Constitution and statutes enacted
in pursuance thereof." In effect, by such a formulation, there is already
present a firm legal obligation to conduct all government operations within
a framework of constraints established by duly ratified international
treaties.
Several more specific principles are expressed clearly in the manual:
superior orders are not an acceptable legal defense; the obligations to
uphold rules of international law are not waived by battlefield necessities
or the imperatives of war; and the absence. of a punishment for the offense
in domestic law does not relieve an individual of responsibility under
international law. In ?510 entitled "Government Officials," the language is
peculiarly pertinent to'the matters before this committee: "The fact that a
person who committed an act which constituted a'war crime acted as the head
of a State or as a responsible government official does not. relieve him from
responsibility for .his act." If such a legal framework exists for those who
serve in the military and face the strongest 'pressures to abandon the
restraints of law, it would seem strange to exempt their civilian
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counterparts who are associated with intelligence activities that have often
had the character of . military or paramilitary undertakings.
Although shrinking back from the implications, the various official
responses to the Iran/contra disclosures, including the Tower Commission
Report and President Reagan's main response in the form of a nationally
televised address on March 4, 1987, accept the notion that: government,
operations in the national security field'impose.legal accountability upon
all those, who take part. Mr. Reagan strongly endorsed the view that
principles of legality should prevail even when the'activity was within the
domain of national security and of a necessarily secret. character (as, for
.instance, certain negotiations for the release of hostages held in foreign
countries).
At the same time, the public discussion of law in the setting of Iran/
contra seemed to be concerned. only with adherence to domestic law, including
broad constitutional notions of separation of powers. Even the
congressional committee of investigation, in its.. interrogation of Colonel
North, and others, seemed to back away from those issues of accountability
that.flow from international treaty obligations.
Here, then, is the nub of the problem. There is an undoubted formal.
and technical acceptance of official accountability as informed by
international treaty obligations, but there is an equally. impressive
reluctance to implement these obligations in any effective manner.
This
reluctance, it'should be fully. acknowledged, runs deep, particularly in
.relation to issues of national security. Against the claims of law is the
dual sense that efficiency in foreign policy requires governmental
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1 A.
discretion
to do whatever helps produce victory and that the. adversaries of
the United States are not constrained by deference to international law.
Underneath these widely held views is the belief that international law is
not truly law, and that "the game of nations" unfolds in a jungle--in the
end-, only the play of unfettered forces count. Such attitudes are not new,
but the prolonged urgencies of the Cold War carried on beneath the shadow of
a possible nuclear catastrophe, have tended over the years. to convert the
doctrine and practice of national security into a corpus of behavior that is
virtually unchallengeable by reference to international law.
Is this a desirable state of affairs to accord lip service to official
accountability under international. treaty law, but to grant-an exemption in.
practice? The issues posed raise both matters of prudence and ' of: principle.
Would the United States be truly disadvantaged in.international affairs by
adopting a policy of implementing notions of official accountability? An
affirmative answer would have to show from the record two-things: that the
United States hasbenefitted from past-practices of international
lawlessness. and that the Soviets both engage in such practices and would
likely take advantage of any U.S. disposition to become more law-abiding..
is a matter of judgment, but I would submit as a student of U.S.
.foreign policy in this period, that the costs of "lawlessness" have far
outweighed the gains. Such an.assessment is. based both on the longer term
consequences of "successful" interventions (Iran 19533 'Guatemala 1954, Chile
1973) and of "failures" (Eastern Europe in the late 1940s; Bay of Pigs).
Beyond this, the international reputation of the United States has suffered
greatly by this persistent pattern of perceived lawlessness. Deep
expressions of anti-American popular feelings are powerfully and.
increasingly manifest in such diverse: settings as South Korea, Central.
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America, and the Middle East. These feelings are significantly connected'
with the belief'that.the U.S. Government, especially by way ofillegal
interventionary.diplomacy through the agency of covert operations, is
responsible for conditions of domestic repression. Finally, and
non-trivially, the costs of international lawlessness a't'home are
considerable and mounting: a divided and disaffected citizenry, widespread
attitudes of cynicism and distrust toward official policy, a weakening of
fundamental ideas about separation of powers and the primacy, of popular
sovereignty.
But what about the Soviet Union?; Is it justifiable, or was it, to
fight fire with fire? First of all, the. argument of effectiveness must be
first demonstrated, both theirs and ours. If interventionary activities
,are, on balance, self-defeating, then it is actually a national advantage to
refrain from their commission, regardless of what the Soviets do. The
Soviet interventionary record looks no more successful than the United
States record. The Soviet failure in Afghanistan is only the most dramatic
instance of such failure. Outside those contexts of direct occupation, as
in Eastern Europe, Soviet efforts to intervene covertly overseas have not
yielded any significant results bearing on either regional. or global
balances of power. Under-Chairman Gorbachev Soviet foreign policy seems
.likely to become more restrained and law-oriented. If Soviet substantial
violations of specific treaties in the.national security;. area occur, the
United States would be legally entitled to take.. offsetting steps without
necessarily giving notice,or repudiating the treaty.. That is, fears of
becoming asymmetrically trapped by requirements of legal accountability seem
?unwarranted given the.flexibility.of treaty law:.
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The issues of principle involved are also important. - The premises of
constitutional democracy accept.the notion that governmental accountability
to.law.is inherently valuable even,if'it is. achieved at some cost, in
efficiency. Extending this rationale to foreign policy. seems natural in an
interdependent world. As a practical matter . two. sets of actions are subject
to infringement by imposing governmental accountability:
--respect for the constitutional order. of foreign countries;
.--respect for international treaty rules prohibiting the use of
force as an instrument of foreign policy in circumstances other than valid
claims of individual and collective self-defense.
To reverse this tide of unconditional, and largely unexamined,
deference to. national security claims, it seems highly beneficial to impose
a serious framework of accountability under law in all governmental
operations.
The objectives and scope of H.R. 3665 seem responsive to national
requirements and to the values of constitutional democracy., Extending
officially accountability would enhance respect for government here and
abroad, and would give the American people some assurance that their
officials were living within the. frame of law.
There are some specific issues.of approach in the proposed legislation
that I would raise for discussion. First of all, in ?2902, it seems unduly
broad to cast the net.here to cover "any intelligence activity." It does
not seem desirable, at this stage, to risk allegations of illegality under
international treaties for intelligence activities associated with
information-gathering. Some of these activities, such as satellite
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observation and overseas espionage, undoubtedly raise issues of potential
treaty violations--relatingto the peaceful use of space, respect for
domestic law, abuse of space, and the like. Yet these activities are
related to the prevention of the risk of. nuclear war and surprise attack,
and are part of the accepted, and generally desirable, practice of states.
The application of international treaty concepts would seem arbitrary and
often harmful. In my view, then, the scope of "National Security Offenses"
flowing from "intelligence activity" should be restricted to. covert
operations, or some like term of art.
There is, also, a question of whether international treaties would be
deemed as "self-executing" without further legislative specifications... To
make this legislation more resistant to constitutional controversy, it would
.be helpful to specify the treaties that. are to be the basis of this new
statutory offense. Such a specification would be sufficient to encompass
those offenses done by Intelligence officers under a color of governmental
authority:
--violations of the laws of war (Hague Conventions of 1899,,1907-
Geneva Conventions of 1949; and more specialized treaties to which the
United.States is a party, for instance, the. Biological Weapons Convention);
--respect for the-prohibition on the use of force in international
affairs (the United Nations Charter, and a variety of regional treaties in
the Western Hemisphere);
--respect for the. constitutional integrity of foreign states and
respect for the
treaty rule of international law forbidding.intervention in
the internal affairs of sovereign states (the United Nations Charter as
authoritatively interpreted by resolutions of the Organization and by .
decisions.of the International..Court of Justice)..
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The obligations of treaty law on these offenses are quite clear.
only serious obstacle to assessing violations would involve clarifying
contested versions of the facts, a familiar task.for law enforcement
officials and courts.
There is one final point. The statute as drafted does not incorporate
customary international law. It should be noted that the U.S. field manuals
governing accountability do encompass customary international law, and the.
U.S. Supreme Court has authoritatively indicated its applicability to legal
disputes in domestic courts. There would be much relevant, reinforcing
material in customary international law, especially on the crucial norm of
non-intervention. I_would, accordingly, recommend that H.R. 3665 be amended
to include. customary international law, but only as it pertains to'specified
national security offenses of the sort indicated here.
IV
In conclusion, passage of H.R. 3665 would give great. encouragement to
all those Americans who believe that a law-oriented foreign.policy best
serves our interests and values in the modern world. It would also help
restore and sustain our confidence in government, and mount a long overdue
challenge to the claims of national security policy to-be above the law.
need official accountability of governments at least.as.much in 1988 as we
.understood we needed it back in 1945.
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Statement
of
Professor Jules, Lobel, University of
Pittsburgh Law School, Representing the
Center for Constitutional Rights on H.R.
3665,, The Official. Accountability Act of 1987,
Before
The House Committee on the Judiciary
Subcommittee on Criminal Justice,
June 15, 1988
Mr. Chairman and members of the Committee, thank you for the
.opportunity to present this testimony before the Committee on
behalf-of the Center for Constitutional Rights. The Center for
Constitutional Rights (CCR) has long sought to ensure. that
Executive Officials comply with the rule of law in conducting
United States foreign policy. Five years. ago, the CCR represented
Congressman Dellums in his attempt, pursuant to the Ethics in
Government Act, to initiate a special investigation into alleged
executive, violations of the Neutrality Act in connection with U.S.
aid.to'the Nicaraguan contras. While the Federal District Court
ordered such an investigation, holding that reasonable grounds
.existed to believe that a criminal violation had occurred, its
order was reversed on other grounds by the Court of Appeals.l
Because of its commitment to the principle that Executive
officials must not be above the law the Center for Constitutional
Rights supports H.R. 3665.
1Dellums v. Smith, 573 F. Supp. 1499, 577 F. Supp. 1449 (N.D.
Cal. 1984)., overruled on other grounds, 797 F.2d 817 (9th Cir.
1986).
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The history of CIA.activities since the enactment of the
National Security Act of 1947,. illustrates that a fundamental
conflict. exists between what has become known as the national
security state and the rule of law. For it is a basic premise
underlying the activities of the CIA and National Security
apparatus that obedience to law must yield to the national
security interests as perceived by the Executive. As former
President Nixon explained in a 1977 interview:
the President
. approves something, approves an action because of national
security,. then the President's decision in that instance is one
that enables those who carry it out to carry it out.without
violating a law."2 Ten years later, Oliver North returned to a
similar theme, violations.of law are justified by national.
security interests.
The Iran contragate investigation and report focused on'
3
violations of.statutes enacted by Congress..
Yet, international.
agreements binding on the United.States have also been seriously
.violated by executive. officials in carrying out covert operations
in Nicaragua. In 1983, CIA agents authorized and distributed a
manual to the contra forces encouraging the assassination of
civilians who supported the Nicaraguan government, in clear
violation of.both an executive order and the U.N. Charter. and
Geneva Conventions.
In 1984, the CIA was responsible for
2Quoted in K. Sharpe, The Real Cause of
Policy 19, 35 (1987).
Irangate, 68 Foreign
3Report of the Congressional Committees Investigating the
Iran-Contra Affair, S. Rep. No. 216, H. Rep. No. 433, 100th Cong.
1st Sess. chp. 27 (1987)..
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mining Nicaraguan harbors, in violation of our treaty obligations:
under the U.N. Charter, the Charter of the Organization of
American States and Treaty of Friendship Commerce and Navigation
with Nicaragua. The International Court of Justice virtually
unanimously held that-both actions violated international law.4
In neither of these cases involving'serious, violations of our
international obligations were the wrongdoers appropriately
punished.
The diversion of funds-to the contras,from July through
October 1986 not only violated the Boland Amendment, it also
violated the judgment of the International Courttof Justice in
Nicaragua v. United States. We are bound to abide by that
judgment, pursuant to Article 94.-of the U.N. Charter to which we
continue to be a party.. During the time period involved,
Congress had not authorized activities in violation of the ICJ
judgment. Yet that violation received no attention from the
investigating committee:
The Executive Branch has consistently disregarded applicable
treaty obligations in conducting covert operations. A special
Presidential committee in 1954 argued that in combatting communism
"There are no rules in such agame. Hitherto acceptable norms of
human conduct do not apply."5, President . Ford,. when asked if the-
4Case Concerning Military and Paramilitary Activities in and
Against Nicaragua (Nicaragua v. United States), 25 ILM 1023
(1986).
5S. Rep.'No. 755, 94th Cong. 2d Sess. 9 (1977) quoting Hoover
commission on government organization.
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CIA's !'destabilization" of the Allende government in Chile
.violated international law;. replied
"I'm not going to pass judgment on
whether it is permitted or authorized under
international law. It is a recognized fact
that historically.as well as presently such.
actions are taken in6the best interests of the
countries involved."
This cavalier Executive attitude toward our international
obligations is contrary to our constitutional principles.. Article
VI of the Constitution establishes treaties as the supreme law of
the land. Because the Supreme Court decisions have accorded
treaties a status equal to that of acts of Congress,7 the
.President is required to adhere to the law laid down by those
treaties just as he is obliged to obey statutory-law. Thus, the
Supreme Court has held in Cook v. United States that the Executive
power is limited by a treaty,.8 a position supported by the
statements of early congressional leaders and statesmen, as well
.as modern commentators.9 While the power of the President to
terminate a treaty.is as yet undecided, the.Executive clearly has
no unilateral power to amend, modify or breach a treaty. The
Church Committee concluded the Executive Branch's authority to
6
.Presidential, News. Conference 9/16/1974, 10 Weekly
Compilation of Presidential Documents 1157, 1162..
7Whitney v..Robertson, 124 U.S. 190, 194 (1888); The Head
Money Cases, 112 U.S. 580,. 598 (1884).
8Cook v. United States., 288 U.S. 102 (1.933) United States v.
Decker, 600 F.2d 733, 737 (9th Cir.), cert. denied, 444 U.S. 855
(1979).
See sources collected in Lobel, The Limits of Constitutional
Power: Conflicts Between Foreign Policy & International Law, 71
Va. L. Rev. 1071, 1121-29 (1985).
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undertake foreign intelligence activities can only be exercised
"in accordance with applicable norms of international law."10
Even John Marshall's famous speech proclaiming that the President
is the sole organ of_.the nation in its external relations, relied
.on by proponents of broad Executive power, goes on to state that
the President is."charged to execute the laws. A treaty is
declared to be a law. He must then execute a treaty
Decisions to breach treaty obligations or customary law have
the potential to create international-strains and repercussions
far more serious than routine foreign policy decisions...
Separation of powers concerns dictate that even assuming that such
actions are constitutionally permissible, they should be subject
to the greater scrutiny . provided by a decisionmaking process
'involving both houses of Congress as well as the president.
In the face of continued. Executive resistance to the notion
that it.is bound to comply with the terms of 'a treaty.as ratified
by the Senate--a resistance recently witnessed in the dispute over
the interpretation of ABM.Treaty--it is vital that Congress,
clearly establish sanctions for violations of treaties. H.R. 3665'
is a welcome attempt to do just that. Criminalizing violations-of
treaties would hopefully give members of the NSC pause when
considering particular courses of action, because they would.know,
that they could .be held personally accountable for their actions.
10
S. Rep. No. 755', supra at.33.
11 Report of.the Congressional Comm.'s Investigating the
Iran-Contra Affair, S. Rep. No. 21.6, H. Rep. No. 433, 100th Conga,
lst Sess. at 390 (1987)..
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By providing that.Executive officials
who violate
treaties without
Congressional sanction are committing crimes, the statute will aid
in enforcing both democratic government at home, and a stable and
peaceful international order.
There are three potential objections to a statute such as
H.R. 3665 that I would like to address. The first.is that
criminalizing violations of treaties.is unconstitutional because
international agreements are often very general and subject to
different-interpretations. That argument.is applicable to many
statutes as well; even'the Boland Amendment was apparently subject
to differing interpretations. Moreover, while. international
agreements are often drafted broadly and.are subject to. various
differing opinions as to their reach, nations generally agree as
to a treaty's core meaning. For example, while there is dispute
as to the expansiveness of Article 2(4)'s prohibition against the
invade another country is clearly prohibited. Such U.S. actions
.as the Bay of Pigs invasion, or the Grenada invasion, or mining
the Nicaraguan harbors clearly violate those core principles.
The narrowing of somewhat imprecise and broad principles of
international law to a universally agreed upon core is not new in
American jurisprudence. In 1819, for instance, when Congress
enacted a statute prohibiting piracy "as defined by the Law of
Nations," serious questions arose over whether this definition was
use of force, all. nations agree on certain basic principles.
sufficiently precise to permit prosecutions under the act.
Justice Story, writing for the Supreme Court, held that it was,
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the crime,."all writers concur, in holding, that robbery, or
forcible depredations upon the sea, . . is piracy."12
We must, not forget that our. government believed that certain
basic principles incorporated in international agreements were,...
sufficiently precise to impose criminal liability on the,Nazis-.at
Nuremberg. Justice Jackson, the United States prosecutor at
Nuremberg stated, "if certain acts in violation of treaties are.
crimes, they are crimes whether the United States does them or
whether Germany does them, and we are not prepared to lay down a
rule of criminal conduct against others.which we would not be
willing to have invoked against us.""13
A second possible objection to criminalizing Executive covert
activity in violation of international agreements is that such a
bill would prohibit many such covert actions. Indeed, most major
Post World War II covert activities. violated our treaty
obligations. The 1954 CIA sponsored overthrow,of the Arbenz
government in Guatemala, the Bay of Pigs invasion, the
"destabilization" of the Chilean government, the Phoenix program
in.Vietnam and secret . war. conducted by the CIA in Laos all
involved breaching treaty agreements. Yet that is an argument
for passage of this statute, not against it.
Our stated policy is
12United States.v. Smith, 18 U.S. (5 Wheat) 153, 161 (1820)..
13 Report of Robert H. Jackson, United States Representative
to the International Conference on Military Trials, International
Org. &.Conf. Ser. II, European & British Commonwealth 1, Dept. of
State Pub. No. 3080 at 330 (London 1945).
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to abide by. international law, the time has come
enforce that policy.
for Congress to
Finally, the Administration argument in the Dellums case,
rejected by the District Court, was that'the flexibility and
discretion required by foreign policy decisionmaking dictated
,against the application of criminal statutes to that realm. In
this whole covert action area executive officials constantly
caution. against applying clear legal mandates because of the need
for flexibility. Yet it is precisely the allowance of Executive
,discretion and flexibility that has wrought repeated crisis,
scandals and policy failures, as the Executive searches for
loopholes or skewed interpretations of statutes to undertake
policies not supported by the American people, nor openly and
democratically debated.
The Iran-Contra Report.concluded that "paramilitary covert
actions are in a twilight area," where . the Executive and Congress
have concurrent authority, and in which its distribution is
uncertain.14 I would argue-that.such is not the case. The
framers of the Constitution believed that not only declared wars,.
.but the initiation of lesser uses of force was for Congress and
not the President to decide.15 Thus Article I:, ? 8,. gives to
Congress.the power not only to declare war, but to issue letters
15Lobel, Covert War.& Congressional Authority: Hidden War &
Forgotten Power, 134 U. Pa. L. Rev. 1035, (1986).
1st Sess. 376.(1987).
Report of the Congressional Comms. Investigating the
Iran-Contra Affair, S. Rep. No. 216, H. Rep. No. 433, 100th Cone.
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of, marque and reprisal which traditionally were perceived-as uses
The constitutional decision to allocate power over the
initiation of.warfare to Congress, even warfare involving private
parties, reflected a.substantive judgment on the-part of the
framers that the use of force against another nation should be.
made difficult and undertaken only after measured deliberation.
The history of.covert,operations.over the past forty years has
undermined that constitutional framework. Yet that substantive
judgment is equally compelling in today's world, in-which war is
far more destructive'.and calamitous than it was in 1787.' This
statute is awelcome effort to restore the constitutional balance.
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