EXECUTIVE SUMMARY INTELLIGENCE OVERSIGHT ACT, H.R. 3822

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100080040-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 27, 2016
• Document Release Date: December 3, 2012
• Sequence Number: 40
• Publication Date: July 1, 1988
• Content Type: MISC

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Republican
Study
Committee
July 1, 1988
Barbara Vucanovich, M.C.
Chairman
Ed Buckham
Executive Director
EXECUTIVE SUMMARY
INTELLIGENCE OVERSIGHT ACT, H.R. 3822
Status ,
* H.R. 3822 has been reported out of the Intelligence Committee
(Report 100-705, Part 1). It passed 11-6 on May 11, 1988..
* Foreign Affairs Committee has completed hearings and is filing its
report. It passed 28-17 on June 22 , 1988.
* The bill is expected to come to the floor at the end of July, after
the recess for the Democratic convention.
* The Senate passed a similar bill, S.1721, by 71-19 on P1arch 19, 1988.
Proposed House Amendments
By Congressman Broomfield, that would essentially permit the
President to withho n13~ication "if he determines that it is
necessary to meet rare, extraordinary circumstances constituting a
serious threat to United States national security interests."
By Congressman Solomon, who would create criminal penalties for
government employees inc uding f~lembers of Congress, staff, or Executive
Branch employees), who, without authorization, knowingly and willfully
disclose classified information.
0
This material was prepared at the request of a member of the Republican Study Committee. The views contained in it should not be construed as
being the views of any specific officer or member of the Republican Study Committee.
ROOM 433, CANNON BUILDING, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C. 20515 (202) 225-058'1
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Republican
Study
Committee
July 1, 1988
.Barbara Vucanovich, M.C.
Chairman
Ed Buckham
Executive Director.
INTELLIGENCE OVERSIGHT ACT, H.R. 3822
Alias "48-Hour Bill"
D
D
INTRODUCTION
t.
Giddy with summit euphoria, blind to realpolitik, and emboldened by
a weakened presidency, Congress is hellbent on destroying the covert-.
action capability of the Central Intelligence Agency." Bruce Fein's
article (Washin ton Times, June 21, 1988) accurately describes the
motivation a in e ~ 1 H.R. 3822 and the potential destruction to
U.S. foreign policy the legislation could cause.
The bill's failing is its requirement that Congress be given prior
notification of all covert actions. Under extreme circumstances,
however, notification must occur "as soon as possible, but in no event
later than 48.hours after" the covert action has been authorized. This
requirement exceeds current statutes and would seriously effect end U.S.
covert. actions. Congress has a poor track record with its ability to
plug security leaks, and so it is reasoned that the inevitable leaks
from Capitol ,Hill resulting from prior notification would compromise
sensitive covert operations. Moreover, the bill's severe restriction on
presidential power raises serious constitutional concerns.
The 48-hour bill is the direct result of Congressional overreaction
to the Iran-Contra affair. Hence, its purported goal is to increase
Congressional oversight of covert actions. But it would curtail the
country's ability to act covertly and thus undermine the the national
security of the United States.
This material was prepared at the request of a member of the Republican Study Committee. The views contained in it should not be construed as
being the views of any specific of5cer or member of the Republican Study Committee.
ROOM 433; CANNON BUILDING, U.S. HOUSE OF REPRESENTATIVES, WASHINGTON, D.C. 20515 [phone]
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MAIN PROVISIONS OF H.R. 3822
o It amends the framework of the Intelligence Oversight Act of 1980
regarding notification of Congress of intelligence activities.
For cases of extreme time sensitivity, it replaces the requirement
of reporting to congress in a "timely fashion" with a timetable of
not to exceed 48 hours.
o The bill allows the President to authorize a covert action when a
finding determines that the action is important to national
security and is necessary to support the foreign policy objectives
of the United States.
o The finding must be in writing, signed by the President, and must
specify each agency, department, or entity authorized to~fund or~
significantly participate in the covert action. It also must
specify whether third parties will be involved.
o It permits an oral finding when in extraordinary cases immediate
action is required. But in no circumstances shall Congress be
notified later than 48 hours after a covert action is authorized.
Notification can be given to the four Leaders of Congress and the
chairmen and ranking minority members o.f the intelligence
committees (the so-called Gang of Eight) when immediate action is
required.
o Congress must .be notified of "any significant change...or under-
taking" in a covert action previously authorized. .
o It .clarifies the definition of covert action and attempts to' draw.
~~ 'the line between covert activities and other intelligence and
intelligence-related activities, i.e. tact~ica:l military activities.
o No government funds appropriated for or ava ilable to any
government agency may be expended for covert action purposes
unless a finding is made and the not ification`,requirements are
fulfilled.
All intelligence oversight provisions would~be consolidated into
.one statute, Title V of the National Security Act~of 1947,~as
amended, by repealing the existing section 662 ~of the Foreign
Assistance Act of 1961 (the Hughes-Ryan Amendment) and
in corporating~the reworded substance of that section in a new
section 504(d) of the National Security Act of 1947.
EXECUTIVE BRANCH ACTIONS
'As a result of the President's National Security Decision.
Directive (NSDD 286), most of the provisions in H.R. 3822,are already
White House policy. For example:
o The Executive Branch is already committed to notifying Congress,
in virtually all cases, as soon as possible. Usually prior notice
is given before an action is started;
O
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0 48 hours is the usual timef tame the President has established for
congressional notification of extremely sensitive covert actions
(now called "special activities");
o If notification is delayed because of extraordinary circumstances,
then the President must certify the delay and have his National
Security Planning Group (NSPG) review. the situation every ten days;
o A finding must be obtained before any agency or department can
conduct a covert action;
o A finding must be in writing, cannot be made retroactive, and must
be consistent with existing law;
o Foreign policy justification and specifying the involvement of
third parties are already in effect;
o Reporting requirements for significant changes in covert action
,programs are already established;
The Iran-Contra Committee concluded in its report that "the
Iran-Contra Affair resulted from the failure of individuals to observe
the law, not from deficiencies in existin law or in our system of
governance." p. emp asis a e It a so stated that,
"Experience has shown that these laws and procedures, if respected, are
adequate to the task." (p. 375)
Following the Tower Commission report, a new National Security
Advisor was appointed, Judge Webster was sworn in as the Director of
Central Intelligence (DCI), the National Security Council (NSC) was
prohibited from engaging in special activities, and the position and
authority of the NSC legal advisor was upgraded. Taken together, these
Presidential actions, including NSDD 286, amount to a great deal. of
effort by the Administration to address the concerns of Congressional
oversight and covert action reform. It should be clear, therefore,
that legislation codifying these reforms is unnecessary and unwise.
Kissinger, former National Security Advisors Zbigniew Brzezinski and
OPERATIONAL PERSPECTIVE
As succinctly described in the dissenting views of the Intelligence
Committee's Minority Members (Report 100-705, Part 1), the bill's
"stubborn insistence on ignoring the real world of intelligence
operations" will have catastrophic results. In opposing H.R. 3822,
former DCI William Colby said that the bill will make "the whole
process rigid, rather than reflective of the real world."
Furthermore, a blue ribbon panel of intelligence and foreign policy
professionals urged the Committee not to endorse the restrictive
48-hour provision in a letter signed by former Secretary of State Henry
William Colby and Richard Helms, and former senior CIA official George
Carver.
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Since the Revolutionary War covert actions have been an important
part of American foreign policy. There are times when covert action
is the only option the country has. The people who carry out covert
operations depend on the secrecy of their mission.' Both their lives
and the country's reputation are at risk. Also at risk are the United
States' relationships with other countries with whom it cooperates.
Evidently, those covert actions are important enough for the U.S. to
take those risks.
The concept of risk, therefore, should be the operative measure by
which notification sTiould be judged; not time. In rejecting the
48-hour fixed time limit, Admiral Stansfield Turner (former DCI under
President Carter) said that, "...timeliness is not measured by a
clock. Timeliness should be measured by the risk...When the risk to
human life is diminished sufficiently is when it is timely to .notify
the Congress...."
According to Members of the Intelligence Committee, in only four
instances has notification to Congress been delayed.- Three of those
occurred during the Carter Administration. All of them dealt with the
release of U.S. citizens held hostage and at risk in the Biddle East.
One of the best examples of delayed notification occurred in 1980
during the Iranian hostage crisis. Briefly, the Canadian Embassy in
Iran assisted the U.S. in smuggling out six American Diplomats who had
taken refuge there. The one request the Canadians had in exchange for
their cooperation was total secrecy. Obviously, Canada feared that
its Embassy might be attacked if it were leaked that it was helping
the.United States. A covert operation was authorized by President
Carter and he told Congress about the operation after a three month
delay.
Another example of delayed Congressional notification occurred
during the six months of covert activity that preceded the failed
Desert I mission that attempted to rescue hostages-held in the
American Embassy in Tehran. Admiral Turner testified that absolute
secrecy was necessary, and that Congressional notification would have
cancelled the mission. Congress was notified after the failure.
These stories simply illustrate that there will be occasions when,
in order to receive critical cooperation from foreign countries and to
conduct certain covert actions, Congressional notification must be
delayed. Such delays can occur under the guidelines of NSDD 286
without fear of abuse. It is this type of extraordinary situation
that requires flexibility. It has prompted Secretary of Defense Frank
Carlucci to say, "Who among us can say with absolute certainty that. no
future President will ever be faced with circums ances requiring thaw
note ication o a covert action to the Congress be delayed beyond 48
hours?" (emphasis added)
New Definition of Covert Action
One provision actually accepted by the Administration is the
revised definition of "covert action." In part, it reads:
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...the term 'covert action' means an activity or activities
conducted by an element of the United States Government to
~ influence political, economic, or military conditions abroad so
that the role of the United States Government is not intended to
be apparent or acknowledged publicly....A request by any
department, agency, or entity of the United States to a foreign
government or a private citizen to conduct a covert action on
behalf of the United States shall Est be deemed to be a covert
action.
POLITICAL PERSPECTIVE
The bottom line of H.R. 3822 is partisan politics. It seems the
majority of Democrats in both Houses want to cripple further the
Reagan Administration, cause problems for the Bush Presidential
campaign, and make a power grab for a greater policy making role.
Supporting this theory, Eugene Rostow, a former State Department
official and distinguished legal scholar, has concluded that the bill
is designed "to put Members of the two intelligence committees
squarely into the center of the President's decision-making process as
active and indeed 'equal' participants. This is surely
unconstitutional."
In the Committee Report, proponents of the legislation have argued
that prior notification and consultation are not designed "simply to
protect prerogatives of Congress, but to give the President the
benefit of independent counsel on important policy decisions...."
That statement in fact substantiates the claim that Congress is
seeking a larger and more intrusive role in foreign policy and
intelligence policy matters - a trend that has grown over the last
decade.
Constitutional Concerns
The Administration and the .Minority Members of the Intelligence
and Foreign Affairs Committees believe that H.R. 3822 is
constitutionally invalid because it intrudes on the President's powers
as head of State and Commander-in-Chief. It is once again an example
of Congressional micromanagement of U.S. foreign policy.
The bill is considered to be unconstitutional for several reasons:
o Article II, section 1 of the Constitution gives all executive
authority to the President. That authority includes intelligence
activities and covert action which is an integral part of foreign
affairs. The framers of the Constitution demonstrated that the
President has nearly all the authority to conduct foreign affairs.
o Congressional demands of information on extremely sensitive
intelligence operations is an infringement on the judicially
recognized doctrine of executive privilege. Therefore the
constitutional principle of separation of powers is violated.
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~.
o The intrusion by the Legislative Branch into Presidential.
execution of his foreign affairs powers violates the spirit of
Article I, section 6 of the Constitution. That section prohibits
a Member of the Legislative Branch to exercise functions of a
government office in the Executive Branch. Of course Presidential
and Congressional consultation is necessary and good, but that is
very different from Congress assuming a constitutional right to
participate in consultations that comprise the decision-making
process of the Executive.
o The prior notification clause as well as the 48-hour deadline for
extremely time-sensitive cases is simply a veil for prior
consultation. Eugene Rostow explains that the so-called reporting
requirements are not that at all, but rather "confer upon two
committees of Congress the right and power to advise the President
in advance of his decisions about how to execute the law." This
consultation/notification requirement gives the intelligence
committees or Gang of Eight a quasi-legislative veto over
Presidential policies, which is clearly unconstitutional.
CONCLUSION
Dr. Zbigniew Brzezinski strongly warned against passage of H.R.
3822. He said that "the 48-hour notice for covert operations...would
undercut fatally the President's ability to conduct the necessary
operations which occasionally require absolute secrecy." In their
dissenting views, the P1inority Members of the Intelligence Committee
concluded that, "By trying to wrap H.R. 3822 in the flag of
legislative oversight, some of the bill's proponents hope to strike at
covert action by making it impossible in some cases and practically
impossible in a host of others."
There is no getting around it: the real world requires a covert
action capability. The bill, however, couTa endanger the ,lives of
American employees simply trying to do their job. This legislation
serves no purpose other than to create more roadblocks and more
confrontation in an already strained relationship between the
Legislative and Executive Branches. Furthermore, it is highly
probable that the legislation is unconstitutional.
As an indication of support, 23 of 24 Republican t~1embers on the
Intelligence and Foreign Affairs Committees who studied this
legislation closely opposed it because of the 48-hour rule. In the
words of Congressmen Hyde, Livingston, Lungren, Cheney, McEwen, and
Shuster, "H.R. 3822 is impractical, unworkable and dangerous."
DeForest A. Hamilton III
National Security Policy Analyst
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