DICK CHENEY'S PAPER ON CONGRESSIONAL OVERSIGHT OF COVERT OPERATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100060003-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 27, 2016
• Document Release Date: December 4, 2012
• Sequence Number: 3
• Publication Date: April 21, 1988
• Content Type: MISC

A A
Declassified and Approved For Release 2012/12/04: CIA-RDP90MO1264R000100060003-9
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E 1188 CONGRESSIONAL RECORD - Extensions of Remarks
repression, are working together to replace
apartheid with a democratic system;
In Poland, Czechoslovakia, Hungary and
other countries of eastern Europe where
there has been an extraordinary growth in
independent democratic action, a process
that is now spreading even to the Soviet
Union itself.
These are but a few of the countries in
which.we have been active, all of which are
listed in the annual report that we have
submitted to the subcommittee. Among the
many projects described, there are some
that already have had an especially broad
and significant impact. I would like to call
the subcommittee's attention to:
The Institute for Liberty and Democracy
in Peru, where pioneering work with the
vast informal sector of microentrepreneurs
has produced a new free-market approach
to development in the Third World that is
beginning to transform development theory
and policy around the world;
Conciencia in Argentina, a women's civic
action movement that is spreading to fif-
teen other Latin American countries and
has been established in the Philippines as
well.
Libro-Libre in Costa Rica, a movement of
democratic intellectuals, which has pro-
duced a new democratic literature for Cen-
tral America and which represents the first
coherent attempt to promote democratic
ideas in the region;
The International Coalition for Human
Rights in Cuba, headed by Armando Valla-
The Chinese Intellectual, a journal of in-
dependent opinion circulating in China
whose editor has now established a major
intellectual center in Beijing which is work-
ing to further the process of reform and
opening.
The third and final factor that accounts
for the progress and acceptance of the En-
dowment is the very nature of the world sit-
uation in which we find ourselves. This situ-
ation is clearer to us now, after the experi-
ence of Nicaragua, than it was before.. What
we have all learned and, I think, can agree
upon is that an anti~Cornmunist dictator
(such as Somoza) is not a bulwark against
Communism, nor- is the removal of such a
dictator. a guarantee of democracy.. If we
don't build up the democratic forces-sys-
tematically, over time, with adequate re-
sources-then there will not be a strong
democratic alternative when the authoritar-
ian system collapses, as inevitably it must.
In a word,. we will have - only ourselves to
blame if we find ourselves with no option
other than retreat or the use of force, and
we will pay the price-as we have-in
money, in division that strains the political
fabric of our society, and possibly in lives as
well.
There is even a more basic reason for the
relevance of the Endowment today. We live
in a state of strategic parity with our main
rival, the Soviet Union. There may be vio-
lent conflicts at the margins of the world
political system, but the overall balance is
likely to be preserved. This means that the
use of
force will continue to decrease as an instru-
ment of policy, and competition will increas-
ingly shift to the realm of politics. We must
have the capability to engage effectively in
this competition.
rivals, who have usurped the banner of de-
mocracy for their own anti-democratic ends.
. We're now beginning. to wake up to this
unpleasant reality, but we still have a long
way to go. True, there has been a democrat-
ic revival during this decade, and conditions
are still favorable for democratic advance.
But this is no cause for complacency. It was
only a little more than a decade ago that de-
mocracy was thought to be in decline, and it
will not take many setbacks for pessimism
to return once again.
In the meantime, we should accept the
fact that political competition will not dis-
appear, that democracy has dedicated oppo-
nents who have hardly given up the fight,
and that we must therefore have the where-
withal to defend and promote our values in
a world of diverse cultures and competing
political philosophies.
I believe that the Endowment is potential-
ly the most effective instrument we have for
advancing our values in the world. It is cost-
effective, activist, engaged. It not only pro-
vides concrete assistance to democrats on
the frontlines of political struggle, but sends
a message of solidarity and democratic com-
mitment. We are gaining good will even as
we assist our friends and thereby advance
our own interests as well.
We hope that as we continue to progress,
you will continue to weigh our needs against
the enormity of the challenge we face and
the promise this new institution offers for
serving the finest ideals and highest inter-
ests of our country.
DICK CHENEY'S PAPER ON CON-
GRESSIONAL OVERSIGHT OF
COVERT OPERATIONS
HON. HENRY J. HYDE
OF ILLINOIS
IN THE HOUSE OF REPRESENTATIVES
Thursday, April 21, 1988
Mr. HYDE. Mr. Speaker, today I am honored
to submit for publication the second of three
installments of Dick CHENEY'S recent paper
for the American Bar Association on how to
clarify executive and congressional responsi-
bilities in supervising covert actions. In the
first section, submitted for the RECORD yester-
day, Mr. CHENEY argued that constitutionally
and, historically, the President has a monopoly
on diplomatic communication and the power
to initiate foreign policies, including to lead the
Government in concrete actions involving de-
ployment of existing resources; the Congress,
on the other hand, through its budgetary con-
trol has the power to sustain or veto those ini-
tiatives which endure over some period of
time. On oversight of covert action, all oper-
ations of extended duration in effect have the
committees' tacit support, the Iran/Contra pro-
gram being the notable exception.
In the second segment submitted today, Mr.
CHENEY considers the proposed 48-hour rule
on notification of covert actions. Existing bills,
he argues:
0 0 are typical examples of "never
again" thinking by Congress. To make sure
the [Iran/Contra] disaster will never again
repeat itself, Congress is willing to deprive
future Presidents of all possible discretion
under conditions Congress cannot possibly
foresee. The result is an approach to legisla-
very well at explaining and defending it. In
fact, we have all but abandoned the field of
political competition to our ideological
practical reasons.
I commend this analysis to other Members
and urge them to stay tuned for the final sup-
April 21, 1988
plement next week. In his conclusion, Con-
gressman CHENEY offers a substitute to pro-
posed legislation which is designed to en-
hance congressional oversight while not in-
fringing on executive prerogatives.
CLARIFYING LEGISLATIVE AND EXECUTIVE
ROLES IN COVERT OPERATIONS-PART II
(By Dick Cheney)
PROPOSED 48-HOUR RULE
The Intelligence committees can. only
review covert operations if they know about
them, however. President Reagan did not
notify the intelligence committees of the
Iran arms sales for eleven months after
signing a formal finding, to authorize them.
I do not think anyone in Congress believes
this was timely. The important questions
are, how should Congress respond? Should
Congress try to close the "timely notifica-
tion" loophole legislatively? Or are the costs
of loophole-closing so severe that it pays to
seek more creative and more politically and
operationally sensitive ways out of the prob-
lem? I favor the second approach. A majori-
ty of my colleagues, however, seem to be
stuck in a legalistic and largely sterile at-
tempt to close loopholes. I will discuss posi-
tive alternatives at the end of this presenta-
tion. First, let me indicate what I think is
wrong with the dominant mode of congres-
sional thought. -
The Senate has recently passed, and the
House will soon consider, bills that would
require the President under all conditions,
with no exceptions, to notify Congress of all
covert operations within 48 hours of their
start. Those bills, in my opinion, are typical
examples of "never again" thinking by Con-
gress. To make sure the last disaster will
never again repeat itself, Congress is willing
to deprive future Presidents of all possible
discretion under conditions Congress cannot
possibly foresee. The result is an approach
to legislative-executive relations that I con-
sider fatally flawed for interrelated consti-
tutional and practical reasons.
At the heart of the dispute over this bill is
a deeper one over the scope of the Presi-
dent's Inherent constitutional power. I be-
lieve the President has the authority, with-
out statute, to use the resources placed at
his disposal to protect American lives
abroad and to serve other important foreign
policy objectives short of war. The range of
the President's discretion does vary, as Jus-
tice Jackson said in his famous concurring
opinion in the Steel Seizure case. When the
President's actions are consonant with ex-
press congressional authorizations, discre-
tion can be at its maximum. A middle range
of power exists when Congress is silent.
Presidential power is at its lowest ebb when
it is' directly opposed to congressional man-
date.9 What is interesting about this typol-
ogy, however, is that even when Congress
speaks, and the President's power is at its
lowest, Jackson acknowledged that there-
are limits beyond which Congress cannot
legislate.1? Those limits are defined by the
scope of the inviolable powers inherent in
the Presidential office itself.
Let me now apply this mode of analysis to
the sphere of covert action. Congress was
legislatively silent about covert action for
most of American history, knowing full well
that many broad ranging actions had been
undertaken at Presidential initiative, with
congressionally provided - contingency
funds." For most of American history,
9 Youngstown Sheet and Tube Co. v. Sawyer 343
U.8.579,635-38 (1952).
10 Ibid. at 645.
11 For a summary, see U.S. House of Representa-
tives, 100th Congress, First Session, Select Commit-
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April 21, 1988 CONGRESSIONAL RECORD - Extensions of Remarks E 1189
therefore, Presidents were acting in the Using this line of reasoning, the court was also withheld for about six months in
middle range of the authority Jackson de- argued that even though courts were vested two other Iranian operations during the
scribed. Congress does have the power, how- with the contempt power by statute, they hostage crisis. Said Turner: "I would have
ever, to control the money and material re- would have been able to exercise that power found it very difficult to look ... a person
smirro e
Vl 411G OQi111C
actions. Hughes-Ryan and the 1980 over- reason, the court held, Congress must have
sight act represent attempts by Congress to inherent authority to exercise a similar
place conditions on the President's use of power.14 Later cases tried to circumscribe
congressionally provided resources. Those Congress's contempt power, but the power
conditions, for the most part, have to do itself was always held to be a necessary ad-
with providing information to Congress. Be- junct to Congress's legislative functions and
cause Congress arguably cannot properly therefore to rest on an implied constitution-
fulfill its legislative function on future al foundation.16
money bills without information, the re- So far, the-Court's argument would seem
porting requirements can be understood as to support Congress's right to demand infor-
logical and appropriate extensions of a le- mation of the executive. But what happens
gitimate legislative power. if that power confronts another implied
The constitutional question is: what are power held by another branch that is equal-
the limits to. what Congress may demand as ly well grounded on a constitutional foundaa
an adjunct of its appropriations power? tion? That was the issue in the executive
Broadly speaking, Congress may not use the privilege case of U.S. v. Nixon.16 In that
money. power to achieve purposes that it case, we learned that the decision in any
would be unconstitutional for Congress to particular case must rest on the competing
achieve directly. It could not place a condi- claims of the two branches at odds with
tion on the salaries of judges, for example, each other. That is how I think the 48-hour
to prohibit the judges from spending any rule must be decided.
time (i.e., any part of their salaries) to reach The proposed 48-hour bill recognizes the
a particular constitutional conclusion.12 President's inherent power to initiate a
In the same way, Congress could not use covert action, as long as that action is limit-
its clearly constitutional powers over execu- ed to resources already available to the
tive branch resources and procedures to President. That is why the 1980 oversight
Invade an inherently Presidential power. act and the proposed 48-hour bill both take
For example, Congress does not have the pains to say that by requiring notification,
constitutional power to use an appropria- Congress is not asserting a right to approve
tions rider, such as the Boland Amendment, Presidential decisions in Advance.'? If Con-
to deprive the President of his authority as gress ever tries to insist on advance approv-
the "sole organ of diplomacy" to speak per- al that would surely be overturned as a leg-
sonally, or through any agent of his choice, islative veto.'8
with another government about any subject But if the President has the inherent
at all. I mean this last statement specifically power to initiate covert actions, then the
to include asking another government to same rule that gives Congress the right to
support the Nicaraguan Democratic Resist- demand information, and the related con-
ance. Congress does have the power to pre- tempt power, also gives the President the
vent the, President from offering another necessary implied powers he may need to
country something of value in return for put his acknowledged power into effect. In
such support. For example, it could prevent virtually all cases, there is no conflict be-
a President from conditioning foreign aid on tween the President's power to initiate an
another country's support for the Contras action and requiring the President to notify
for fear that U.S. foreign aid, the control the intelligence committees, or a smaller
over which is in Congress's province, would
Just become a laundering device. But despite group of leaders, of that operation in
ad-
protestations and innuendoes galore durin _vance. In a few very rare circumstances,
circumstances,
g
the Iran-Contra hearings, Congress may not however, there can be a direct conflict.
prevent the President from using exclusive-
ly Stansfield Presidential powers to achieve results who was the Director of Central Intelli-
Congress may not like. gene at the time, there were three occa-
How does this reasoning apply to the pro- sions, all involving Iran, in which the Carter
posed 48-hour rule? Congress quite properly Administration withheld notification during
an ongoing justified the 1980 notification requirement, held d for for about operation.
t three ree months until until Notification was with-
mon six Amer-
as
as I mentioned earlier on the need for in-
in
the eye and tell him or her that I was
going to discuss this life threatening mission
with even half a dozen people in the CIA
who did not absolutely have to know".20 In
these situations, President Carter thought
his constitutional obligation to protect
American lives could not have been fulfilled
if he had been required to notify Congress
within 48 hours. And as the Canadian exam-
ple makes clear, the choice between not no-
tifying or not going ahead at all is some-
times put on us by people outside U.S. con-
trol.
The Iranian hostage examples also show
that the situations under which notification
may have to be withheld depend not on how
much time has elapsed, but on' the charac-
ter of the operations themselves. It is worth
emphasizing that the proposed bill would
require notification within 48 hours of an
operation's start-that is, when the U.S.
begins putting people in place, not when the
operation is finished. Let us put aside for
the moment whether fear of Congressional
leaks would be a legitimate reason for with-
holding notification about a particularly
sensitive operation. 1. believe there is good
reason to be concerned about leaks, but am
willing to defer argument about whether
this concern carries constitutional weight,
because there are better examples to make
my point. There can be no question that
when other governments place specific secu-
rity requirements on cooperating with the
United States, the no-exceptions aspect of
the proposed 48-hour rule would be equiva-
lent to denying the President his constitu-
tionally inherent power to act.
Who should have the power to decide that
notification would make action impossible?
In the rare situation in which a President
believes he must delay notification as a nec-
essary adjunct to fulfilling his constitution-
al mandate, that decision must by its nature.
rest with the President. The President obvi-
ously cannot consult with Congress about
whether to consult. That would itself be a
form of consultation. If the President could
go that far, there would not be a problem
and we could just accept the rule.
So, on the one side of the scale, we see
that the President's implied power to with-
hold notification may be a necessary ad-
junct to the inherent power to act. What is
on Congress's side of the scale? In the same
report on the 48-hour bill that acknowl-
formation as a necessary adjunct to the leg- icans could be smuggled out of the Canadi- edged the President's power to initiate
islative power to appropriate money. By an Embassy in Teheran. As Representative action, the Senate Intelligence Committee
doing so, Congress stood squarely within a Norman Mineta pointed out in testimony offered two constitutional justifications for
line of cases upholding Congress's contempt following Turner's, the Canadian govern- its notification requirement. The first was
"
to provide Congress with an opportunity to
power. In the 1821 case of Anderson v. Dunn ment made withholding notification a condi-
the Supreme Court unheld tar ?aa ,.,r ,..,.,_ tion of their participation." Notification _exercise its responsibilities under the Con-
ment others given expressely by the Consti-
tution. In a statement that clearly applies to
all of the government's branches, the Court
said: "There is not in the whole of that ad-
mirable instrument, a grant of powers
which does not draw after it others, not ex-
pressed, but vital to their exercise; not sub-
stantive and independent, indeed, but auxil-
iary and subordinate." 13
tee to Investigate Covert Arms Transactions with
Iran and U.S. Senate, 100th Congress, First Session,
Select Committee On Secret Military Assistance to
Iran and the Nicaraguan Opposition, Report of the
Congressional Committees Investigating the Iran-
Contra Affair, H. Rept. 100-433, S. Rept. 100-216
(November 1987), pp. 467-69.
12 For a somewhat analogous but less absurd case,
see Brown v. Califano 627 F. 2d 1221 (1980).
"Anderson v. Dunn, 6 Wheat. 204, 225-26 (1821).
decisions to undertake covert actions are
not left solely to a handful of single-minded
executive officials."22
The second of these reasons is nothing
less than a demand that Congress partici-
pate in a decision it has already acknowl-
edged belongs to the President. Prudence
undoubtedly should lead to consultation,
but the dictates of prudence do not settle
questions of constitutional power. The first
argument-about legislative responsibilities is
more weighty, but I would submit that
there is no legislative power that requires
notification under all conditions, with no
exceptions, during any precisely specified
" Id. at 628-29.
"Kiibourn v. Thompson, 103 U.S. 168 (1881),
read the power narrowly, but McGrain v. Dougher-
ty, 273 U.S. 135 (1927) and Sinclair v. U.S., 279 U.S.
263 (1929) in turn read Kilbourn narrowly. Later
cases have tended to involve conflicts between the
contempt power and the First. Amendment, Wat-
kins v. U.S., 354 U.S. 178 (1957) and Barenblatt v.
U.S., 360 U.S. 109 (1959).
U.S. v. Nixon 418 U.S. 683 (1974).
"See U.S. Senate Select Committee on Intelli-
gence, 100th Congress, 2d Session, Intelligence
Oversight Act of 1988, S. Rept. 100-276, pp. 16, 24,
26.
1 ? See INS v. Chadha, 462 U.S. 919 (1983).
19 U.S. House of Representatives, Permanent
Select Committee on Intelligence, Subcommittee on
Legislation, 100th Cong., 1st Sess., Hearings on
H.R. 1013, H.R. 1371, and Other Proposals Which
Address the Issue of Affording Prior Notice of
Covert Actions to the Congress, April 1 and 8, June
10, 1987, p. 158.
PO Id. at 45. See also 46, 49, 58, 61.
" Intelligence Oversight Act of 1988, S. Rept. 100-
276, p. 21.
74 Ibid, p. 22.
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E 1190, CONGRESSIONAL RECORD - Extensions of Remarks April 21, 1988
time period. All we need to know is whether
to continue funding ongoing operations. We
have had that information in every case,
with the exception of President Carter's and
President Reagan's hostage-related Iran ini-
tiatives.
I suppose you could argue that, failure to
notify might, in the extreme, deprive us of
our ability to decide about continuing to
fund a particular operation. Iran-Contra
was such an extreme. But the choice is not
one-sided The price of assuring notification
about all operations within a specific time
period is to make some potentially life-
saving operations impossible. On the scale
of risks, :I am more concerned about depriv-
ing the President of his ability to act than I
am about Congress's alleged inability to re-
spond. I feel this way not because I am san-
guine about every decision Presidents might
take. Rather, it is because I am confident
that Congress' eventually will find out in
this leaky city about decisions of any conse-
quence. When that happens, Congress has
the political tools to take retribution
against any President-whom it feels with-
held information without adequate justifi-
cation. President Reagan learned this dra-
matically in the Iran-Contra affair. It is a
lesson no future President is likely to forget.
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