DICK CHENEY'S PAPER ON CONGRESSIONAL OVERSIGHT OF COVERT OPERATIONS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100060004-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 27, 2016
• Document Release Date: December 4, 2012
• Sequence Number: 4
• Publication Date: April 20, 1988
• Content Type: MISC

Declassified and Approved For Release 2012/12/04: CIA-RDP90M01264R000100060004-8
April 20, 1988 CONGRYSIONAL RECORD ? Extensions of Reni;4s E 1129
EXTENSIONS OF REMARKS
DICK CHENEY'S PAPER ON CON-
GRESSIONAL OVERSIGHT OF
COVERT OPERATIONS
HON. HENRY J. HYDE
OF ILLINOIS
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 20, 1988 .
Mr. HYDE. Mr. Speaker, DICK CHENEY is a
Congressman respected on both sides of the
aisle for his reasoned logic and careful ap-
proach to complicated issues. He is one f)f
those Members who "does his homework," c
voracious reader knowledgeable on a wide
range of issues.
On March 30, Mr. CHENEY presented to the
American Bar Association Standing Commit-
tee on Law and National Security a paper on
"Clarifying Legislative and Executive Roles in
Covert Operations." It is a topic on which he
is particularly qualified to speak, as he is a
member of the House Intelligence Committee,
former ranking Republican member of the
Iran-Contra Committee and current chairman
of the House Republican Conference. More-
over, because DICK has been a Member of
the House since 1979, and before that was
President Ford's White House Chief of Staff
during 1975-77, he has unique exposure to
foreign policy decisionmaking and to the inter-
ests of both the executive and legislative
branches.
Soon we will be considering legislation on
whether to impose a requirement. that Con-
gress be notified within 48 hours of any covert
action. I believe Members would benefit from
Congressman CHENEv's thoughts on this
issue. Over the next several days, therefore, I
will submit his paper for publication in the
CONGRESSIONAL RECORD. The first portion,
submitted today, considers the constitutional
basis and history of power over foreign affairs,
plus the nature of recent legislation providing
oversight over covert action. The second seg-
ment addresses the proposed 48-hour notice
legislation and some problems with it. In the
final installment, the underlying issue of how
to achieve informed consent or veto without
public debate is considered, and Congress-
man CHENEY offers his own solution as a sub-
stitute for the proposed 48-hour legislation.
The material follows:
CLARIFYING LEGISLATIVE AND EXECUTIVE
ROLES IN COVERT OPERATIONS?PART I
(By Dick Cheney)
There is probably a consensus at this con-
ference, and in Washington generally, that
the process for managing legislative-execu-
tive relations with respect to covert oper-
ations could be improved. The consensus
quickly breaks down, however, as people
begin putting forward concrete suggestions.
There are two general areas in which pro-
posals seem to concentrate. One has to do
with requiring that Congress be notified of
all covert operations within 48 hours of
their start. The other deals with the broad-
er issue for which notification is a substi-
tute: the conditions under which covert op-
erations should be deprived of their covert
character to be made the subject of public
debate. I shall discuss each of these subjects
today, first criticizing the bills that hay
been moving through Congress and the
concluding with a new set of proposals fo
grappling with what has become a highl
contentious set of issues.
The reason there is so little- consensus
about solutions is that any idea for improv
ing the oversight process for covert oper
ations must rest on some premises about th
appropriate role of the legislative and exec
utive branches in foreign policy more gener
ally. I shall not spend a great deal of time
on broad questions of constitutional law
You have already heard from several noted
experts in that field. Suffice it to say that I
tend to agree with Robert F. Turner's and
John Norton Moore's arguments on legisla
tive and executive power.
A few words on the subject will help place
the rest of my remarks in context, however.
One of the main institutional objectives for
the Framers of the Constitution as they
worked through the hot summer of 1787 in
Philadelphia, was to create an independent-
ly powerful executive branch of govern-
ment?unlike the executive in most states at
the time, or under the Articles of Confeder-
ation. The Framers specifically wanted an
executive who would be able to act with suf-
ficient energy, secrecy and dispatch, to re-
spond _to the foreign policy crises the new
nation inevitably would face. So they cre-
ated the Presidency?one person placed
clearly in charge of the executive branch?
because they knew that when too many
people share power and responsibility, deci-
sions become muddy and actions are not
taken. Then they gave that single executive
the power to be the nation's leader in for-
eign policy. They made him the "sole
organ" for diplomatic communication and
gave him broad, discretionary power to
deploy the government's resources to pro-
tect American lives and interests abroad.
Of course, the Constitutional Convention
did not make the President all-powerful. It
also gave Congress an important role to play
in foreign policy, most obviously by giving
the full Congress the power to declare war,
tax, appropriate, and regulate foreign com-
merce, and also by giving the Senate the
power to ratify treaties. But by giving Con-
gress an important role to play, the Consti-
tution?contrary to Edward S. Corwin?Was
not an unbounded "invitation to struggle."
Congress and the President were not given
the same powers. Rather, each branch was
given different powers to influence overlap-
ping policy decisions, with each branch gen-
erally being given the powers most appro-
priate to its own capacities. The expectation
was that the President would be able to use
his diplomatic monopoly, and his ability to
deploy the government's resources, to lead
the government by taking concrete actions
toward other countries. Congress could
always support or oppose the President by
granting or denying him the resources
needed to follow up on what he had started.
But the relationship between initiation and
Congressional ratification was to be very
different from the domestic field, where
Presidential initiation either rests on a stat-
utory delegation, or else must be limited to
introducing an Idea and then trying to per-
e suade Congress to adopt it.
n Since the Vietnam War, as is well known,
Declassified and Approved For Release 2012/12/04: CIA-RDP90M01264R000100060004-8
E 1130 CONGRESSIONAL RECORD ? Extensions of Remarks April 20, 1988
Despite this clear legislative history
behind a statute almost as old the Republic,
members of Congress today feel they can
negotiate with foreign leaders directly, in
the name of the legislative branch and in
opposition to the President. It would be
hard to imagine a clearer usurpation of ex-
ecutive authority than House Speaker Jim
Wright's meetings with Nicaraguan Presi-
dent Daniel Ortega last November 11-12,
without informing or involving the State
Department, to discuss and influence a San-
dinista cease-fire proposal-that was still in
draft form. Ortega's draft contained de-
tailed items for ending U.S. military support
for the Nicaraguan Democratic Resistance.
This was only one of a series of meetings in-
dividual House Democratic opponents to the
President's policy have held with the Nica-
raguan Communists to discuss what the
Communists should do in Nicaragua to per-
suade a majority in Congress to vote against
the President's program.
Nor was that the only recent occasion of
creative legislative usurpation of executive
authority. Some Democratic Senators tried
to use the Department of Defense authori-
zation bill in 1987, for example, to try to
impose its interpretation of a treaty on the
President. Similarly, many Senators tried to
use the same bill?as members of Congress
have done ever since the War Powers Act
was first introduced in the early 1970's?to
assert that the executive's power to deploy
governmental resources rests solely on stat-
utory grounds, as if there were no constitu-
tionally independent, inherent power for
the executive to act against anything short
of an armed invasion of the U.S. mainland.
My view of each of these actions is evident
from my use of the word "usurpation." It is
equally obvious, however, that a significant
number of my Democratic colleagues con-
sider each to have been perfectly appropri-
ate. The underlying difference affects any
discussion of reforming the laws for con-
gressional oversight of covert operations.
Ultimately, we seem to run up against prin-
cipled differences over the proper constitu-
tional roles of the legislative and executive
branches. Congress could take some practi-
cal steps?to match ones the executive al-
ready has taken?that would help repair the
breakdown in comity that occurred during
Iran-Contra. I shall suggest a few specific
ideas at the end of this essay. Before I
present those ideas, however, I shall first
say a few words about the way the oversight
process now works, and the problems with
the bill now working its way through Con-
gress to tighten up so-called "loopholes."
OVERSIGHT OF COVERT OPERATIONS
During the opening months of President
Ford's administration, Congress attached
the Hughes-Ryan Amendment to the For-
eign Assistance Act of 1974. Born out of gen-
eral post-Vietnam and post-Watergate suspi-
cions of the executive branch, as well as spe-
cific congressional opposition to some past
operations,6 the provision sponsored by Sen.
Harold Hughes (D-Iowa) and Rep. Leo J.
Ryan (D-Cal.) was intended to insure that
Congress would be informed of covert oper-
ations conducted by or on behalf of the
Central Intelligence Agency. As originally
History of Laws.Prohibiting Correspondence With a
Foreign Government and Acceptance of a Commis-
sion, U.S. Senate, 64th Congress, 2d Sess., S. Doc.
64-696 (1M), p.?.
6 See U.S. Senate, 94th Congress, 2d Sess., Hear-
ings and Final ,Report. of the Select Committee to
Investigate, government Operations With Respect
to Intelligence (1976) (Church Committee) and U.S.
House of Representatives, 95th Congress, 1st Sess..
House ? Select Committee on Intelligence, Recom-
mendations Of the Final Report (1977) (Pike Com-
mittee).
written, Hughes-Ryan prohibited the ex-
penditure of any funds by or on behalf, of
the CIA for any operations in foreign coun-
tries, except those solely intended to obtain
necessary intelligence, unless (1) the Presi-
dent specifically found that each such activ-
ity was important to U.S. national security
and (2) each such operation was reported
"in a timely fashion" to the appropriate
committees of Congress. The amendment
specifically named the House Foreign Af-
fairs and Senate Foreign Relations Commit-
tees, but the list of appropriate committees
also was generally understood to include the
two Armed Services Committees, the two
appropriations committees and, after they
were formed in 1976 and 1977, the Senate
and House Select Committees on Intelli-
gence.'
Hughes-Ryan quickly caused probTems
that were evident even to some of its origi-
nal supporters. By requiring notification to
so many committees, the law in effect was
requiring the CIA to notify more than half
of the Senate, one-quarter of the House,
and vast numbers of staff. It was impossible
to prevent leaks under such conditions. In
fact, wrote former Director of Central Intel-
ligence William Colby, "every new project
-subjected- to this procedure leaked, and the
'covert' part of CIA's covert action seemed
almOst gone." 8
In response to this situation, Congress
sought, and found, a reasonable middle
ground. In 1980, after abandoning its efforts
to pass a lengthy and problematic legislative
charter for the intelligence community,
Congress decided to revise the oversight law
to expand the notification condition from
the CIA to all departments, agencies and en-
tities of the United States involved in intel-
ligence activities, and to limit the commit-
tees receiving notification to the two intelli-
gence committees. In general, the 1980 law?
"to the extent consistent with all applicable
authorities and duties, including those con-
ferred by the Constitution upon the execu-
tive and legislative branches"?required the
executive branch to notify the intelligence
committees (or, under special conditions,
the chairmen and ranking minority mem-
bers of the two committees, and four leaders
of the House and Senate) before beginning
any significant, anticipated intelligence ac-
tivity. The law also contemplated, however,
that there might be some conditions under
which prior notice Would not be given. In
those situations, it required the President
"to fully inform the intelligence committees
in a timely fashion."
Under this? law, the intelligence commit-
tees in fact have become significant players
whose support any prudent Administration
would do well to encourage. The 1980 law
did not challenge the President's inherent
constitutional authority to initiate covert
actions. In fact, that law specifically denied
any intention to require advance congres-
sional approval for such actions. Neverthe-
less, Congress does have a very strong lever
for controlling any operation that lasts
more than a short period of time. Oper-
ations undertaken without prior approval
have to be limited to the funds available
through a contingency fund, or other
budget devices, all of which are well known
to Congress. Legislative control comes from
the fact that Congress may constitutionally
abolish these flexible tools and require
project-by-project funding. Of course, such
a decision would be suicidal because it would
deprive the President of all discretion and
Pub. L. 93-559. Sec. 32, 88 Stat. 1804 (1974). The
present verkion of -Hughes-Ryan, as amended by
the 1980 Oversight Act, may be found at 22 U.S.C.
2422.
William Colby, Honorable Men (1978). p. 423.
also- deprive the country of any ability to
react quickly to breaking events. Congress
therefore would not ever v.e likely ,to use its
power to insist on project-by-project fund-
ing. Nevertheless, because the Constitution
does give Congress this draconian lever, the
intelligence committees can and do use the
annual budget process to review every single
ongoing operation. Any time Congress feels
that an operation is unwise, it may step in
to prohibit funds in the coming budget cycle
from being used for that purpose. As a
result, all operations of extended duration
have the committee's tacit support (or non-
opposition). Considering how many people
in Congress and the general public oppose
covert operations in principle, this is an im-
portant political base for any administra-
tion concerned about the country's long-
term intelligence capacities.
A TRIBUTE TO MS. RUTH
PACKARD
HON. CURT WELDON
OF PENNSYLVANIA
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 20, 1988
Mr. WELDON. Mr. Speaker, I would like to
take this opportunity to honor a lady of out-
standing accomplishment in my community.
This week Ms. Ruth sPackard, of Media, PA,
will be celebrating her 40th year as an active
member of the Rose Valley Chorus and Or-
chestra. For 40 years, Ms. Packard has dem-
onstrated her committment not only to the
Rose Valley Chorus and Orchestra, through
her constant work in all aspects of its produc-
tions, but to the entire community. By serving
this theater group so faithfully through the
years, Ruth Packard has helped to weave the
fabric of a closely knit, caring community.
It is not often that we take the time to rec-
ognize an individual's service to the communi-
ty for low-profile work. But to accomplish
things with no need of glory and recognition is
to be truly deserving of praise. Ruth Packard
is just such a person. Her motives were never
selfish?never to gain personal recognition,
and I am ?sure that none will be more sur-
prised than herself to find that her selfless ac-
tions have gained her such wide appreciation.
Although Ms. Packard will be retiring as an
active member of the Rose Valley Chorus and
Orchestra this year, I have no doubt that her
involvement over the years will continue to
serve as a fine example for all those who care
about the community in which they live.
WASHINGTON STATE SENATE
RESOLUTION 1988-8715
HON. AL SWIFT
OF WASHINGTON
IN THE HOUSE OF REPRESENTATIVES
Wednesday, April 20, 1988
Mr. SWIFT. Mr. Speaker, last year this
House agreed to cut the Coast Guard budget
to such an extent that many of the States with
coastal regions are suffering from a severe
deterioration in their ability to provide maritime
safety and law enforcement. It is for this
reason that I would like to enter into the
RECORD a resolution passed by the Washing-
ton State Senate which expresses our State's
Declassified and Approved For Release 2012/12/04: CIA-RDP90M01264R000100060004-8