LETTER (SANITIZED)FROM FREDERICK P. HITZ

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100050010-2
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 27, 2016
• Document Release Date: November 7, 2012
• Sequence Number: 10
• Publication Date: March 2, 1988
• Content Type: LETTER

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SCHWABE, WILLIAMSON & WYATT
ATTORNEYS AT LAW
SUITES 1800-1800, PACWEST CENTER
1211 S.W. FIFTH AVENUE
PORTLAND. OR 97204
[phone]
TELECOPIER: [phone]
TELEX 4937535 SWK III
2000 PENNSYLVANIA AVENUE, N.W.
SUITE 8335
WASHINGTON, D.C. 20000
[phone]
TELECOPIER: [phone]
March 2, 198.8
PEOPLES NATIONAL BANK BUILDING
1415 FIFTH AVENUE, SUITE 900
SEATTLE, WA 98171
[phone]
[phone]
TELECOPIER: [phone]
TELEX 4937535 SWK UI
STAT
Office of Congressional Affairs
Central Intelligence Agency
Washington,'D. C. 20505
In the rush to get this draft report up to the Hill, I
neglected to send you a copy. It was sent on February 26th to
the Chairman and Ranking Members of the SSCI and the HPSCI, with
copies to all of the members of the two committees.
The report is a draft report to the ABA Standing Committee
on Law and National Security and it represents only the views
of the four of us who worked on it, and does not purport to bind
the ABA.
We did weigh in on the definition of "special activities,"
which you expressed some concern about, but we went beyond that
as you will see.
Thank you for providing us with a copy of the original
Star Print of S. 1721. Let me know what you think of the attached.
Sincerely yours,
4
FPH:emf
Enclosure
STAT
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DRAFT REPORT TO THE STANDING COMMITTEE ON
LAW AND NATIONAL SECURITY OF THE
AMERICAN,BAR ASSOCIATION ON S. 1721
This report to the Standing Committee on Law and National
Security considers S. 1721, the "Intelligence Oversight Act of
1987" (the "Bill"), as reported by the Senate Select Committee on
Intelligence on January 27, 1988. A companion bill is currently
the subject of hearings in the House of Representatives. Our
conclusions are that the Bill, while considerably improved in
certain respects from the Star Print version of September 25,
1987, should not be enacted in its present form. There are
additional changes which ought to be made in the Bill to which we
address ourselves below:
(i) As regards intelligence activities other than "special
activities," the Bill would change delicately-crafted provisions
of the Intelligence Oversight Act of 1980, without apparent
justification but with a potential for adversely affecting both
the conduct of such intelligence activities and the oversight
relationship between the Executive Branch and the Congress as it
relates to them.
(ii) As regards all intelligence activities, but special
activities in particular, the Bill risks infringing on the
constitutional powers of the President. By purporting to create
statutory requirements inconsistent with those powers, it would
encourage and institutionalize constitutional confrontation and
could inhibit necessary presidential action in situations
seriously affecting the national security.-
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Oversight of Intelligence Activities
other than Special Activities
The main impetus for the Bill is to cure perceived deficien-
cies in the provisions of the Intelligence Oversight Act of 1980
relating to presidential findings as a condition precedent to the
initiation of special activities, and to require prior notifica-
tion of the Congress concerning such findings. It also seeks to
remedy other drafting oversights and ambiguities highlighted by
the Iran-Contra investigation, such as the elimination of oral
and ex post facto findings. Nonetheless, the Bill also substan-
tially revises the provisions of the Intelligence Oversight Act
of 1980 relating to the obligations of the President, the
Director of Central Intelligence and the heads of departments and
agencies to inform the Congress about intelligence collection
activities and to furnish information regarding them to the
Congress. These changes do not seem warranted by evidence from
hearings on the Bill or statements by the Bill's proponents that
the relationships on these matters between the Executive Branch
and the Congress reflected in the 1980 Act have proved
insufficent.
The most significant changes that the Bill would bring about
are as follows:
1. Section 501(a) would, for the first time, impose a
direct obligation on the President, as distinguished from the
Director of Central Intelligence, to ensure that the intelligence
committees are kept "fully and currently informed on the intelli-
gence activities of the-United States, including any significant
anticipated intelligence activities, as required by this title."
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The substantive scope of the obligation does not in itself differ
from that which Sec. 501(a) of the 1980 Act places on the
Director of Central Intelligence and the heads of other U.S.
government departments and agencies. In the 1980 Act, however,
these reporting obligations are conditioned by the prefatory
.language:
"[t]o the extent consistent with all applicable
authorities and duties, including those conferred
upon the executive and legislative branches of the
Government and to the extent consistent with due
regard for the protection from unauthorized dis-
closure of classified information and information
relating to intelligence sources and methods."
This language was central to the willingness of.the Carter
Administration to accept the enactment of the 1980 Act.
The provisions of the Bill weaken the force of the 1980
Act's prefatory clause in two ways: The first is to remove the
clause entirely from the provisions in Section 501(a) imposing
reporting obligations on the President. In its place there is
only a narrow constitutional savings clause which states that
nothing in the Bill "shall be construed as a limitation on the
power of the President to initiate (intelligence] activities in a
manner consistent with his powers conferred by the Constitution"
(emphasis added). This does not appear to be intended to
-recognize the existence of any presidential power to conduct
intelligence activities without informing the Congress about
them, but rather suggests acknowledgment only of a narrow
possible constitutional authority to defer notification tempor-
arily. Moreover, there is no reference to the protection of
classified information, unless the words "as required by this
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L)
title" be construed to import into Section 501 the prefatory
language of Section 502, which imposes a reporting requirement on
the Director of Central Intelligence and the heads of other
departments and agencies, a construction which is by no means
clear. It would be bizarre to deny to the President the same
right to protect information as is granted to his subordinate
officers. This ambiguity should be eliminated.
The second change which the Bill would make to the prefatory
language of the 1980 Act is to restrict the scope of the informa-
tion that may be protected. The 1980 Act referred to "classified
information and information relating to intelligence sources and
methods." In Section 502, the Bill refers only to "classified
information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters." This narrows
substantially the category of information the protection of which
might provide a basis for withholding disclosure from the
Congress (not on the grounds that the Congress is an unauthorized
recipient but solely on the basis of added risks of disclosure
which follow from increasing the number of people holding the
information, the "need-to-know" principle).
The elimination of unclassified information regarding
intelligence sources and methods from the prefatory language may
be relatively insignificant, since information regarding intelli-
gence sources and methods of sufficient sensitivity to warrant
withholding from the Congress is likely to be classified or
eligible for classification. The narrowing of the protected
category, however, to refer only to "sensitive intelligence
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sources and methods or other exceptionally sensitive matters"
seems unwarranted. Neither the term "sensitive" nor the term
"exceptionally sensitive" has any precise meaning. No doubt the
drafters intend by these terms to express the thought that
justification for withholding information from the Congress
should be a rarity rather than a regular-matter. No attempt
has been made so far in the legislative history to give examples
of the kind of rare circumstances that might be considered
"sensitive" or "exceptionally sensitive." Such an exercise, in
our view, would be both unwise and unnecessary. The basic
principle already existing under the 1980 Act is that disclosure
to the Congress should be made for the purposes described by the
Act, except where compelling reasons exist to withhold such
disclosure, grounded under the 1980 Act either in due regard for
the protection of information from unauthorized disclosure or in
constitutional considerations. Either basis carries with it an
inherent and sufficiently high threshhold of seriousness.
While certain of the modifications that the Bill would
introduce to the prefatory language of the 1980 Act might be
argued to have little or no effect, the elimination of the
acknowledgment of constitutional limitations on what disclosures
the law can compel is highly significant. In our view, the
legislation should make no changes to the portions of the 1980
Act that deal with intelligence collection activities. The
changes embodied in the Bill do not appear to be justified by any
record of significant inadequacy of the 1980 Act as it applies to
intelligence collection activities of which we are aware. While
5
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it is possible that problems have occurred which have not been
reflected in the public record, we consider it unlikely that this
could be the case to any significant degree without there having
been some public comment by the intelligence committees of dis-
satisfaction with the agencies' performance under the 1980 Act.
The prefatory provisions of the 1980 Act, which would be
significantly narrowed by the Bill, represented a carefully
crafted compromise between the positions of the Executive Branch
and the Congress, a compromise which recognized several key
points. One was that there exists no bright line defining the
respective constitutional authorities of the President and the
Congress with respect to intelligence activities and thus no
absolutist formulation, either affirming or denying a constitu-
tional right of the President to withhold information, could be
accepted by either side. A second was that the conduct of intel-
ligence activities -- and particularly intelligence collection --
required that the intelligence agencies be capable of giving
credible assurances of protection to foreign sources of informa-
tion and assistance, both governments and individuals, to whom
the notion of legislative branch oversight is both unknown and
alien. On rare occasions such assurances must extend to a prom-
ise that the identity or activities of the foreign source will
not be revealed to the Congress. Thus it was thought important
to leave in the 1980 Act a prefatory. clause containing a measure
of ambiguity and to leave to the evolution of the oversight rela-
tionship, out of the public eye, the development of an appropri-
ate level of disclosure relating to collection activities.
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These considerations, in our view, are still valid. To
remove any statutory acknowledgment that the provisions of the
Bill are not to be interpreted to invade-the constitutional
powers of the President generally (as opposed to a limited
disclaimer which reads only on the initiation of activities by
the President, does not refer to the constitutional role of the
Executive branch in general and is not made applicable to the
reporting duties of subordinate officials) is to invite future
constitutional confrontations or to encourage inaction on the
part of the Executive Branch, and to deprive the intelligence
agencies of an important basis on which credible assurances can
be offered to their sources.
The intelligence committees of the Congress (and the
appropriations committees also,.for that matter) are provided a
wealth of information on collection programs of the intelligence
agencies in the course of the annual intelligence program budget
reviews. To our knowledge the committees have never contended
that this budgetary information was insufficient to keep them
informed about the risks inherent in highly sensitive collection
operations. The enterprise of intelligence collection is vital
to our nation's security. It would be irresponsible for the
Congress to enact a statute for purposes only of political
symbolism which could have an adverse effect on the effectiveness
of intelligence collection.
The Requirement for.Prior Notice
of Special Activities
Section 503 of the Bill would impose on the President a
requirement of notice to the Congress prior to initiation of a
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special activity and no later than 48 hours after the making of a
finding, subject only to a limited exception under subsection
(c)(2), when time is of the essence, permitting notice no later
than 48 hours after the finding but after initiation of the
special activity. While the constitutional saving clause in
Section 501(a) disclaims limitation of the President's power to
"initiate such activities in a manner consistent with his-powers
conferred by the Constitution," that provision, as noted above,
does not appear to extend to the President's power to conduct a
special activity once initiated without notice to the Congress.
This seems to reflect the view of the provision's drafters that
the President's constitutional powers to withhold notice from the
Congress exist at most in situations of exigency and cover only
the commencement of special activities which are thereafter.
promptly reported to the Congress.
The question of the respective constitutional powers of the
President and the Congress with respect to special activities is
too complex to address here. At a minimum, however, it seems
clear that serious constitutional issues would be raised not only
by legislation that attempted to deny the President the right to
initiate such activities without notice to the Congress but by
legislation denying the President the right to continue to
conduct special activities without such notice. For so long as
the President's constitutional prerogatives and duties justified
the withholding of notice upon initiation of a special activity,
those constitutional powers would seem equally applicable to the
on-going conduct of the special activity.
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Because the constitutional issues mentioned above have not
been definitively resolved by the Supreme Court and continue to
engage constitutional scholars in debate, it seems unlikely that
the proponents of, the Bill can be proceeding on the basis of a
certainty that the reporting requirements imposed by the Bill
represent a correct statement of the respective constitutional
roles of the President and the Congress in this area. Instead,
it appears to be the view -- one expresssed in discussions by
members of the staff of the Senate Select Committee on Intelli-
gence -- that, while the constitutional issue is indeterminate,
the Bill at least would have the virtue of forcing the President
to "climb a steep hill" whenever contemplating the initiation or
conduct of special activities without prior notice. Thus, by
tipping the balance in favor of a statutory requirement of prior
notice, the Bill appears intended to put the President's consti-
tutional powers. to conduct such activities without prior notice
at their lowest ebb and to set the stage for a constitutional
crisis should any President ever again proceed in such a manner.
We consider this not a virtue of the Bill but its great-
est shortcoming: it would create conditions of permanent
constitutional conflict and might precipitate future constitu-
tional crises which inevitably can only be harmful to our system
of government. After the body blow to Executive-Congressional
relations represented by the Iran-Contra investigation, the task
at the present time, in our view, is to rebuild the structure of
those relations across the entire spectrum of foreign policy
issues, of which special activities are a part. Within that
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spectrum, special activities by their very nature must occupy a
somewhat different position than those foreign policy initiatives
which are capable of being debated either in advance of their
initiation or in the course of being conducted. Working out the
proper relationship between the President and the Congress in
this delicate area demands the concerted efforts of both branches
to reestablish a climate of trust and comity between them. It
requires flexibility on both sides and the nurturing of an insti-
tutional structure in which there is room for the development of
pragmatic solutions.
In the particulars cited above, this Bill runs counter to
these objectives. Adoption of these provisions would be bad
policy, regardless of the constitutional merits of the position
it represents. By inviting a constitutional crisis whenever the
President steps outside the rigid procedural confines mandated by
the Bill, there is a considerable likelihood that the Bill will
produce dangerous results.
The argument has been made that the Bill cannot deprive
the President of his constitutional powers and therefore does
no real harm if in fact it would infringe on them as applied
in a specific future situation. This is unrealistic. The
constitutional point is one easily forgotten by the press and the
public, particularly if the special activity is afailure or
unpopular (neither of which necessarily proves that there was not
a compelling national interest to undertake it in the-first
place). If the President acts in the face of a statutory
prohibition of unclear constitutionality, he must pay a heavy
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political price or worse. To any President not.supremely
confident of his political invulnerability, this could be a
potent,, force in favor of inaction.
A second danger is that the.consequence of any such presi-
dential action, once brought to the attention of the Congress,
will be a debilitating confrontation of the kind that surrounded
the Iran-Contra affair and that this will occur regardless of the
merits of the underlying factual situation. Confrontations of
this kind are harmful to the national interest. They benefit
neither the Congress nor the President, regardless of who appears
to be the "winner." It is a serious mistake to build into the
statutory structure of Presidential-Congressional relations a
permanent invitation for such crises to occur.
The Definition of "Special Activity"
The proposed statutory definition of "special activity" in
Section 503(e) carries forward the old. language of the Hughes-
Ryan Amendment as regards the Central Intelligence Agency, but
adds a ,new definition, inspired by Executive Order 12333,
applicable to all other agencies and departments of the
government.
If special activities are to be subject to findings and
notifications when carried on by any agency of the government, it
is unclear why a distinction should be made between the CIA and
other agencies of government. The implication which arises from
the two subsections of Section 503(e) is that there may exist a
category of`activities conducted by the CIA which does not meet
the definition found in subsection 503(e)(2) but which is not
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"intended solely for obtaining necessary intelligence." If such
a category of activities exists -- which seems open to question
-- there is no apparent reason why they should be burdened by a
requirement for a presidential finding as a condition precedent
when conducted by the CIA, any more than they should be if
conducted by any other agency. If legislation in the area of
special activities is to be adopted it should cure this defect of
the Hughes-Ryan Amendment, which was left essentially intact by
the 1980 Act. The authors of the Hughes-Ryan Amendment, in lieu
of hazarding a definition of special activities, took the
blunderbuss approach of requiring a presidential finding for
everything done abroad by the CIA which did not meet the purity
of purpose test embraced in "intended solely for obtaining
necessary intelligence." It is now almost 15 years since
passage of that law. The formulation found in Section 503(e)(2)
of the Bill has been in use for a substantial part of that period
and is generally understood as describing the kind of activity
about which the Congress is concerned. It is a known and
workable definition of "special activity" which should be applied
to the CIA as well as other U.S. departments and agencies,
letting the imperfections of the Hughes-Ryan definition rest in
peace. The time is long past to free the President from the
unnecessary burden of making findings about low-level activities
carried out by the CIA abroad merely because they arise in
circumstances that cast doubt on whether intelligence collection
is the sole and unalloyed purpose.
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The appropriateness of removing subsection 503(e)(1) from
the Bill is confirmed by the Report of the Senate Select Commit-
tee on Intelligence on the Bill, Report 100-276, which indicates
that the definition found in subsection 503(e)(2) represents an
Executive Branch interpretation, acquiesced in by the intelli-
gence committees, of what kinds of activities are within the
ambit of Hughes-Ryan. Thus, for the last several years the,
language embodied in subsection 503(e)(1) has been interpreted by
CIA and the intelligence committees as meaning what is described
in subsection 503(e)(2) and the Senate Report states that such
interpretation would continue to be applicable, leaving it
entirely unclear what CIA operations would fall under subsection
503(e)(1) and what justification there is for including them.
Conclusion
It is to be expected that the trauma caused by the Iran-
Contra episode to Executive-Legislative relations would prompt
the Congress to seek to redress its grievances in legislation,
just as the Church Committee sought to do more than a decade ago
in 1976 in reaction to previous intelligence community excesses.
However, just as the Church Committee investigations after
lengthy hearings and extensive Executive-Legislative delibera-
tions produced the constitutionally ambiguous and delicately
balanced Intelligence Oversight Act of 1980, so it is our hope
that this Bill will benefit from the observations and suggestions
we have made above to achieve a similar balance and freedom from
constitutional confrontation. While it is understandable that
the intelligence committees wish to make as explicit as possible
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the rights and duties of both partners to this constitutional
duet, in our view it is unwise to push the process too far. For
in the end, in the matter of secret intelligence information and
activities, it is trust, comity and respect between the Executive
and Legislative branches of government which ensures a successful
national intelligence effort not a bare listing of legal rights
and obligations. If the Executive feels constitutionally ham-
strung by congressional requirements, its recourse is to evasion,
inaction or to the courts -- but not to the production of first-
rate intelligence in the national interest. By the same token,
if the Congress believes that the Executive is free to ignore
meaningful legislative oversight, its reaction is to investigate
or oppose, using the power of the purse, which is likewise not .in
the national interest. Our country is better served if neither
side of this constitutional argument is seen to hold sway over
the other, and the inevitable power struggles which.ensue are
sorted out through negotiations between the parties in an atmos-
phere of mutual respect and concern for the national interest.
We believe that adoption of the above comments would help move
the Bill in this direction.
Respectfully submitted,
Frederick P. Hitz,
John H. Shenefield
Daniel B. Silver
Robert F. Turner
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ADDITIONAL VIEWS OF JOHN H. SHENEFIELD
The events at the center of the Iran-Contra fiasco invite
once again in this decade, as did revelations of other such
activities not too many years ago, the effort to define with
mathematical precision the constitutional responsibiities of the
Executive and Legislative Branches in the field of intelligence
activities, including special activities. We believe such an
effort is unwise now, as it was then. Instead, all of those
involved in the policy and practice of intelligence oversight
ought to dedicate themselves to rebuilding the trust and confi-
dence that must characterize inter-branch relationships in this
most sensitive of areas.
Two ideals must be high on the agenda of that reconstruction
of trust. First, officials of the Executive Branch cannot con-
tinue to challenge the congressional purpose to participate in
the governance of intelligence activities that are at once so
essential and so controversial. In every options paper proposing
an intelligence activity of significance, there ought to be
careful consideration of the potential for damage to the consti-
tutional fabric, whether or not the operation is disclosed to
Congress in advance and on the assumption it may turn out to be
both a failure and politically unpopular. The price of prolong-
ing the Executive Branch record of arrogance and miscalculation
is likely to be a frittering away of the very constitutional
power now so vigorously defended. In that direction lies
national weakness, not international strength.
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Second, the Legislative Branch must organize itself to share
the grave responsibility it seeks to exercise. There must be no
occasion that justifies allegations of sloppiness or indiscre-
tion. Those in the Congress entrusted with confidence ought to
succeed to that position on the basis not of seniority but of
fitness, which must itself be confirmed by conventional personnel
security procedures.
In short, we are as a nation beyond the point where either
branch may rest upon its prerogative alone. The challenge is to
.build the most efficient and most responsible intelligence commu-
nity in the world. Both the Executive Branch and the Legislative
Branch have an essential part in that effort. But that part must
be played at both ends of Pennsylvania Avenue with modesty and a
determination not just to foster pet schemes or amass political
capital, but to make the system work.
2/88
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