THE CENTRAL INTELLIGENCE AGENCY: OVERSIGHT AND ACCOUNTABILITY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00966R000800020006-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 77
• Document Creation Date: December 20, 2016
• Document Release Date: November 14, 2006
• Sequence Number: 6
• Publication Date: May 22, 1975
• Content Type: OPEN SOURCE

Approved For Release 2006/11/14 `~-RDP91700966R000800020006-7
THE. ASSOCIATION OF 7'111?: 11AR
OF Till-* CITY OF Nt?:W YORK
The Central Intelligence Agency:
Oversight and Accountability
By Tui COM ti t-ria: ON CIVIL RIGHTS
and TI17s Coat>Mi rrl:I:ON I N?1 ERNATIONAL I-IUNIAN Riciri's
INTRODUCTION
The Central Intelligence Agency, although crcaccd cxpressly for the pur-
pose of gathering and coordinating intelligence, has also been used as a
secret it>.trcnnent of eluntestic and foreign policy. William L. Colby, Director
of diet C:IA, stated in his January 15, 1975 report to the Scnatc Appropriations
Committee tl>at the doutestic activities of the CIA have jncluded the insertion
of ;agents into "American dissident circles" in the late r?Go's and early I97o's,
and the compilation of dossiers on about io,uuo American citizens. Mr. Colby
stated further that a "major" function of the CIA was to undertake, when
directed, "covert foreign political or paramilitary operations."
'I'hese activities have been facilitated by tl>c-cxtraordiuary statutory scheme
tinder which the CI,\ operuc?s. Its budget is exempt from legislative review,
a privilege shared by no other federal ;agency, and its activities may he ally
that the N;uinnal Security Gaunt ii directs, as long as they concern in some
fashion "the national security.
As the debate grows over the historical role of the CIA, more questions
have been posed concerning the statutory and constitutional limits of the
.CIA's authority. The purpose of this report is to respond to these questions.
The report will (I) sunnnarize the creation and legal development of the
CIA, (2) discuss the CIA's df>rncstic activities and their relation to the laws
governing (lie Agency and to the Constitution, (S) discuss the foreign at.tivi-
tic?s of the CIA and the legislative and constitutional hasis for these activities,
(I) describe file pre-sent funding ;nrruugtnteuts of the Agency and their legal
b;tsis, and (;,) discuss possible remedies and utake recouunendations concern-
ing regulation of the (:IA's activities in the future.
1. CREATION AND LEC;AL DEVELOPMENT OF THE
CEVTR,IL INTELLMENCE AGENCY
Pearl Harbor convinced the United States that the need for an intelligence
organization was imperative., on June 6, to,.- the office of Strategic Serv.
ices (OSS) was created, headed by Col. (LaterMajor?General)William J. Dono-
van, and throughout the war it gathered intelligence and conducted activities
of a paramilitary nature in support of the war effort.2 In 1 X14, Donovan pre-
pared a plan for President Roosevelt which would establish a central intelli.
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96-8
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Appendix 2
CJ S MAIN FILE CO P71
JALTJ .~'-'tC`t~~t.1C l' nom. Csz;c Get
/ -y
FiSCAL OVERSIGHT OF THE
CENTRAL INTELLIGENCE AGENCY: CAN
ACCOUNTABILITY .AND CONFIDENTIALITY COEXIST?
L IN-raoDucrlo Y
Recent revelations about Central Intelligence Agency
[hereinafter "CIA" or "Agency") activities in the U.S. and abroad
have renewed public interest in the basic dilemma inherent in
the position of a secret agency in a free society. On the one hand,
there is a valid need for intelligence activities in today's internation-
al climate, and intelligence, by definition, must often be gathered
clandestinely. On the other hand, our Constitutional system is based
on checks and balances among the three branches of government.
-The traditional legislative check on executive agencies is provided
through the funding process, by reviews of appropriation requests
and agency expenditures. With respect to the CLA, such funding re-
view is particularly important since secrecy may preclude review of
the substance of specific ongoing projects.
Budgeting is Congress' definitive, practical expression of poli-
cy decisions-except in the case of intelligence agencies such as the
CIA. The CIA budget, which has been estimated at between $750 mil-
lion and $1 billion,' reflects only minimal congressional policy input.
Ironically, however, it is precisely the intelligence area in which the
consequences of poor judgment are potentially most serious: in an
1. The $750 million estimate was made by Sen. William Proxmire. 119
Cong. Rec. 6563 (daily ed. April 10, 1973). The same figure appears elsewhere,
eg. Miller. Bock Review. N.Y. Times. April 1S. 1974. c 7 (Book Review). at 6.
The $1 billion figure appears in Walden. Restraining the CLL. in Surveillance
and Espionage in a Free Society: A Report by the Planning Group on Intelli-
gence and National Security to the Policy Council of the Democratic National
Committee 219 (R. Blum ed. 1972) [hereinafter -Blum**]. Although Walden did
not give the source of his estimate, his billion-dollar figure is consistent with
estimates based on a total U.S. intelligence budget of approximately $62 billion.
(Sen. Proxmire set the total at $6_20S billion. 119 Cong. Rec. 6SS3 [daily ed. Apr.
10. 1973).) At the Hearing on H.F. 6167 and S. 1494 before' the Senate Comm. on
Armed Services, 93d Cong., 1st Sess. 16 (1973) [hereinafter "Hearing on S.
14941, Sen. Stuart Symington stated that the CIA represents about 17 its of the
total intelligence dollar. (17 0 of $6.2 billion equals $1.0S4 billion.)
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494 - INTERNATIONAL LAW AND POLITICS [VOL 7: 493
extreme case, the inopportune discovery or miscarriage of a covert
CIA operation might threaten the nation's continued survival-
In addition. problems necessarily arise whenever large sums of
money are not subject to regular congressional accounting. One
such problem is duplication. For example, the U.S. intelligence
community consists of several organizations: the CLa, the Defense
Intelligence Agency, the National Security Agency, the Intelligence
and Research Bureau of the State Department, the separate intelli-.
gence services of the Army, Navy and Air Force, the Federal Bu-
reau of Investigation, the Atomic Energy Commission, the Treasury
Department, and perhaps others.'- Although there are executive
bodies to coordinate the activities of these organizations, some du-
plication is inevitable. The redundancies are unlikely to be discov-
ered and eliminated unless agency budgets are coordinated and
their spending is closely monitored by Congress a Also, in order to
assign priorities intelligently, not only must Congress be informed
as to the amount of funds earmarked for intelligence, but it must
also have some means to determine whether the intelligence agen-
cies are spending the funds in accordance .-:ith Congress' intent. At
present, the CIA funding process does not permit these require-
ments to be adequately fulfilled.
This Note will examine the CLA, funding process and explore
means to increase congressional control over CLA funding and
2. The named organizations are represented on the U.S. Intelligence Board
(USIB). Hughes. The Power to Speak and the Power to listen: Reflections on
Bureaucratic Politics and a Recommendation on Information Flows. in Secrecy
and Foreign Policy 15 (T. Franc}: and E. Weisband eds. 1974) . The White Howe
annotrncement of the reconstitution of the USIB did not list the Army, Navy,
and Air Force intelligence services as members. 7 Weekly Compilation of Presi-
dential Documents 1482 (1971). reprinted in 117 Cong. Rec. 40,254 (1971)
[hereinafter "White House Announcement"].
3. Sen. Symington has pointed out that such waste is not only a theoretical
possibility but a reality:
We sent out some staff men, from Foreign Relations, good staff men.
They turned up much in,otmation about intelligence that nobody had
told us about, any committee. They said one of the greatest duplications
they found anywhere with respect to unnecessary Spending of the taxpay-
erS money was in the intelligence field.
Hearing on S. 1494. supra note 1. at 15.
We had suit men go in certain areas of the world and they found great
duplication. They found the intelligence units of the CIA, the Depart-
ment of Defense. the Armv. the Navy, and the Air Force all directed to
particular intcl!igence. tremendous duolicatio.n. therefore waste.
117 Cong. Rce 42.925 (1971). It should be noted that Sen. S}ruin;ton's cratieiuns
applied only to duplication in intelligence coiicClio?i. This tc in be ttistinj;tai ed
from duplication in anniysis, which is often justified.
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hence over Agency activities--without impairing the confidentiality
necessary to some lei timate CIA functions. Specifically, it will first
describe the CIA budgeting and appropriation process. It will then
_n,
focus on the components of existing executive and le-
spending "oversight'' Finally, after reviewing the constitutionality
of the present appropriation system, this Note will consider propos-
als whereby Congress might play a larger role in establishing the
CIA budget and overseeing Agency spending.
].L BtmcEmNG AND APp toPRi-vno'1 PROtEnuREs
The Central Intelligence Agency Act of 1949 [hereinafter the
"1949 Act" Js established a unique procedure for funding the
Agency. Instead of seeking regular appropriations from Congress,
the CIA has money transferred to it secretly from the appropria-
tions of other agencies." This is accomplished through an Office of
Management and Budget [hereinafter "OMIB"] administrative pro-
cedure in accordance with instructions from the chairmen of the
House and Senate Appropriations Committees? The process begins
with the formulation of the President's annual budget proposal to
Congress.
A. Proposing the Budget to Congress: The Roles of Executive
Agencies
The budget proposed to Congress by the President is the prod-
~uct of OMB, which receives requests from the executive agencies,
4. The word "oversight" connotes both monitoring and control, although the
two ;unctions are not always coextensive.
5. 50U3.C. E3 403a-403j (1970).
6. Section 403f provides in part:
In the performance of its functions, the Central Intelligence Agency s
authorized to-
(a) Transfer to and receive from other Government agencies such sums
as may be approved by the Bureau of the Bud-t (now redesignated
as the Orrice of Management and Budget, Reorganization Plan No. 2
of 1970, 5 US.C A. App. II ? 102a (1974 Supp) ). for the perform-
anon: of any functions or activities authorized under sections 403 and
405 of this tide, and any other Government agency is authorized to.
transfer to or receive from the Agency such sums without regard to
any provisions of law limiting or prohibiting transfers between
appropriations. Sums transferred to the Agency in accordance with
this paragraph may be cxocndcd for the purposes and under the
authority of sections i03a-031 of this title without regard to limiu-
tions of appcopriatiolu from which transferred.
7. Sec toot accompanying note 31 infra.
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including the intelligence agencies, coordinates the requests, and
then produces one consolidated budget- Theoretically, at least, the
budget requests of the intelligence agencies are coordinated before
their submission to OMB by the Intelligence Resources Advisory
Committee [hereinafter "IRAC" ], which was created by an executive
order of the Presidents to "advise the DCI [Director of Central In.
'telligence,the .chief: otncer.of the CIA] on the preparation of a con-
solidated intelligence program budget." The recommendations
made by the DCI after consultation with IRAC are neither final nor
binding. According to DCI William Colby:
The DCI does not have full responsibility for the budget of the
entire intelligence community. His responsibility ... is to
recommend to the President through [OMB] the general level
and composition of the budget and the appropriate distribution
of resources among the diFterent programs. He does not "con-
trol" the defense intelligence community. Through a variety of
mechanisms and authorities, however, he can exercise leader-
ship with respect to it in the manner directed by the
President."
Thus, whatever advisory role IRAC may play in the DCI's recom-
mendation, it is clear that the principal substantive responsibility
for coordinating the intelligence agency budgets rests with OMB.
According to OM'IB Director Roy Ash, OMB reviews CIA
funding "in the same detail that it reviews the budget requests of
any other executive branch agencjr."10 The OMB review comprises
8. White House Announcement, supra note 2. The DCI is Chairman of
IRAC, whose members are senior representatives from the State Department, the
I etense Department, OMB, and the CLA.
9. Hearings on the Nomination, of William E.- Colby to be Director of
Central Intelligence before the Senate Comm. on Armed Services. United States
Senate, 93d Core-., 1st Scss. 184 (1973) [hereinafter "Colby Hearings']: see aL'.n
id. at 11-12. Colby, was the DCI-designate when this statement was made.
Compare the following Senate colloquy on the limited scope of the DCI's
budgetary role:
Mr. SYMINGTON. We were briefed by the Director of the Central
Intelligence Agency [DCI] twice. the full committee, last January; and
then again this morning.
Dlr. FULBRIGHT. Did he discuss how much was spent by the Na.
tional Security Agency?
Mr. SYAIINGTON. I asked but he did not know.
Mr. FULBRIGHT. He does not know?
Mr. SYMINGTON. He does not know about the others, only his own
in any detail.
117 Cong. ,ec. 42.9'_'7 (1971).
. 10. Lctter from Roy L. Ash, Director. OMB. to Scn. William Proxmire. April
29, 1973 [hereinafter "Ash lette.r'], published in 120 Cong. Rcc. 93G6 (daily ed.
Jane 4. 1974).
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19741 FISCAL OVERSIGHT OF THE CIA
a detailed written justification by each agency for its budget regttest,
written responses to deL'. 1 questions posed by OMB staE as-
signed to review individral agenciei requests. and oral hearings."
The CIA budget is reviewed within an ?0MB unit which considers
and coordinates the budget requests of all foreign intelligence pro-
grams of the Government. Oti1B asserts that this approach reduces,
while it may not entirely eliminate, redundancy in the funding of in-
telligence proms ams.12 The budget thus formulated is forwarded by
OMMB. to the President for submission to Conn ess.
B. The Role of Congressional Appropriations Intelligence Subcom-
mittees
The amount and source of funds to be transferred to the CIA
are neither discussed in nor announced to the full House and Senate
Appropriations Committees. Rather, they are determined by the
Appropriations Committee chairmen meeting in executive session
with an appropriations intelligence subcommittee in each house. In
addition to the chairman of the full committee, each subcommittee
is composed of the ranking minori ty member of the full committee
and senior members of the Appropriations Subcommittees on De-
The House Appropriations Intelligence "Special Group"13
spends approximately four days each year reviewing the budget re-
quests of the CIA and other intelligence services.14 Meetings at
which. the CIA budget is considered are attended by members of
the Special Group, representatives of the CIA, two Appropriations
Committee professional staff members, and a House of Representa-
11. Letter from Joseph Laitin, Assistant to the Director for Public Affairs,
OMB, to author. Oct. 3. 1974, on file in New York University Law Library [here-
inafter "OMB Letter'7.
12. Id.
13. Technically, this group is not a subcommittee. Each Appropriations
Committee subcommittee is responsible for its own appropriations bill,. e.g. ?..
defense, transportation, etc. Since there is no separate appropriation for the
intelligence services, there is accordingly no intelligence subcommittee, but rather
this "Special Croup- which approves intelligence budgets for insertion into other
appropriations. Telephone interview with Samuel Preston, Staff Assistant, House
Appropriations Committee. Nov. 27. 1974 [hereinafter "Preston interview-Nov.
74]. The names of the Special Group's members, which formerly were kept
sccrct, 117 Fong. Ruc. (1971) (rumark. of Rep. Harrington) , were pul.-
lishetl in 1974. 120 Cons. lice. %09 (daily cd. June 4. 1974) (rcnark% of Scn.
McClellan) . -
14. Preston interview-Nov, 74, supra note 13.
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INTERNATIONAL LAW AND POLITICS [VOL 7: 493
tives stenographer who makes a complete record-of the.meeting?s
This process is said to result in a review of the CIA budget which is
as detailed as the subcommittee's review of the-Defense Department
budget.1'
The Senate Appropriations Intelligence Subcommitteei% is
also said to conduct extensive formal budget hearings at which staff
members are present and memoranda are prepared for future refer-
ence by subcommittee members and staff.ls However, in June
1974 Senator John Pastore (D., R.I.), a member of the subcommit-
tee, conceded that no record of its proceedings is kept.19 Senator
Pastore's statement is consistent with an earlier description of the
subcommittee's modus operandi by Senator Allen Ellender (D.,
La.)
We five who sit on this committee hear the testimony of those
applying for funds. The funds are justified to us. We ask many
questions. None of this information is in writing, nor is it re-
'corded, but it. is simply given to us and we weigh it and then
recommend appropriations as is seen fitting ~0
The public record contains indications which cast doubt on the
intensity of the Senate subcommittee's CIA budget review. For ex-
ample, Senator Ellender is reported to have said that he did not
want to learn the details of the CIA budget for fear he might talk in
his sleep2l--a remark which, if true, indicates that a key figure in
the intelligence budget review process preferred to remain less than
fully informed as to the specifics of the CIA budget. This view is
confirmed by a Senate colloquy which took place after it became
public that the CIA had been secretly supporting a 36.000-man
army in Laos:
15. For c3fekeeping. the record is stored at the CIA, which delivers it to the
Capitol on request. Id.
16. Telephone interview with Samuel Preston. Staff Assistant. House Appro-.
priations Committee. Aug. 30. 1974 [hereinafter "Preston interview-Aug. 74"].
17.'The Senate Appropriations Intelligence Subcommittee was first included
in the Appropriation% Committec's published list of subcommittees in 1969. S.
Horn. Unused Power: The Work of the Senate Committee on Appropriations 3S.
40 (1970) [hereinafter "Horn"].
18. Telephone interview with a Senate Appropriations Committee staff mem
ber. Nov. 11. 1974 [hereinafter-Senate Appropriations staff interview"].
19. 120 Cong. Rcc 9506 (daily ed. June 4, 1974)
20. 117 Cong. Rcc. 42,923 (1971) . WL'hcn he made this statement. Sen. Ellen-
der was Chairman of the Appropriations Committee and i:s intelligence Subcom-
mittee.
21. 120 Cong. Rcc.9607 (daily ed. June 4, 1974) (remarks of Sen. Hughes):
Colby Hearing supra note 9. at 52.
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? 499
Mr. FULBRIGHT ... It has been stated that the CIA has
36,000 there. It is no secret. Would the Senator say that be-
fore the creation of the army in Laos they came before the
committee and the committee knew of it and approved it?
Mr. ELLENDER. Probably so.
Mr. FULBRIGHT. Did the Senator approve it?
Mr. ELLENDER. It was not-I did not know anything
about it.... I never asked, to begin with, whether or not there
were any funds to carry on the war in this sum the CIA asked
for. It never dawned on me to ask about it. I did see it publicized
in the newspapers some time ago... .
Mr. CRANSTON .... I would like to ask the Senator if,
since then, he has inquired and now knows whether that is
being done?
Mr. ELLENDER. I have not inquired.
Mr. CRANSTON. You do not know, in fact?
Mr. ELLENDER. 'No.
Mr..CRANSTO.N. As you are one of the five men privy to
this information, in fact you are the No' 1 man of the five men
who would know, then who would know what happened to
this money?
The fact is, not even the five m;en, and you are the chief one
of the five men, know the facts in the situation.
=
Mr. ELLEN DER. Probably not?
Senator Milton Young (R., N.D.), another member- of the sub-
committee, also admitted on the floor of the Senate that he had
"read in the magazines and 'newspapers" about the CIA's army in
Laos.23 It has since been estimated that the CIA was spending
more than $*300 million annually on the secret army in Laos at the
time these statements were made?{
Inasmuch as the subcommittee meets in executive session and
22. 117. Cong. Rec. 42.929-31 (1971) (emphasis added).
23. Id. at 42.930. A statement prepared by William Colby for the Senate
Armed Services Committee's hearing on his nomination as CIA Director appears
to conflict with the statements made by Sens. Ellender and Young. In response to
a question posed by Sen. Hughes. DCI-designate Colby stated:
The appropriate. coin mittees of the Congt-ss and a number of individual
senators and congre.>men wire briefed on CI:Vs activities in Laos during
the period covered. lit -addition. CIA's prograrna were destribed to the
Appropriations Con:uittees in our annual budget hearings.
Colby Hearings, supra note 9, at ISO (emphasis added) -
24. 119 Cong. Rec. 15.352 (daily ed. Aug. 1. 19! 3) (remarks of Sen. Prox-
mire) .
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504 ? ; ? INTERNATIONAL LAW AND POLITICS [VOL 7: 493---
does not publish its proceedings it is difficult. to determine whether
the Senate Appropriations Subcommittee's involvement in the
budgeting process h..s changed since 1971. The fact that the sub-
committee has met with increased frequency during recent years
may indicate that it i, nmv king a more active role.25
There are indiations that the Armed Services Committees and
their intelligence suocommittees may also have a part in the ap-
proval of the CIA budget- For example, in 1973 the Senate Armed
Services Committee reportedly questioned DCI Colby and other
.,,,members:t of the , CIA
. You know self-preservation is a very strong instinct among Members
of Congress. .
Hearings on S. 2224, supra note 54. at 37-33.
97. But see text accompanying notes 145-46 infra.
? 93. Sen. Hughes has described Congress' position with regard to intelligence
Matters:
We are uninformed . . . : We have not had the capacity or responsibili-
ty to know even when we were given information whether it was right or
-wrong, or what was happening.
120 Cong. Rec. 9307 (daily cd. J une 4. 1974) .
99. In the case of the Appropriations subcommittees the probicm, is most
acute. since the CIA buc!.rt as approved by these subcommittees is ccr=:;crated in
other appropriatiutu a:ui is not even subject to the formality of a vote of :he full
House and the full Senate.
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1974] FISCAL OVERSIGHT OF THE CIA
activities and U.S. foreign policy supports the inclusion of these
committees. As demonstrated by the recently disclosed Chilean op.
eration, CIA activities can have a profound effect on U.S. foreign
policy. Conti ess recognizes this:. When a covert operation goes
awry, it looks to the Foreign Affairs and Foreign Relations Com-
mittees, not to the Armed Services or Appropriations Subcommit-
,'tees, for an explanation.10?
Furthermore, the law restricting CIA operations (with very
limited exceptions) to foreign countries10' suggests that the House
Foreign Affairs and Senate Foreign Relations Committees ought to
be included in intelligence oversight. Another reason for their inclu-
sion is the fact that CIA operatives abroad are responsible to the
ambassadors in their respective countries; the ambassadors, in turn,
are part of the State Department, which is within the exclusive con-
gressional jurisdiction of the Committees on Foreign Affairs and
Foreign Relations.102 The Foreign Assistance Act of 1974103 mandates
the inclusion of the Foreign Affairs and Foreign Relations Commit-
tees in certain aspects of CIA oversight which have particular sig-
nificance to the United States' international posture. However, an
informal arrangement by which members of the Senate Foreign Rela-
tions Committee were accorded "observer" status at Senate Armed
-Services Intelligence Subcommittee meetings was discontinued in
1974104
D. Lack of Executive Cooperation
The effectiveness of congressional oversight of the CIA is re-
duced by the failure of the executive branch either to consult with
the subcommittees on policy matters or to cooperate fully in con-
gressional investigations.105 The 1971 White House reorganization
of the intelligence community' is perhaps the most striking ex-
ample of executive failure to consult with the intelligence oversight
100. F. Wilcox, Congress, the Executive, and Foreign Policy 57 (1971).
Hearings about the t1-2 incident in 1960 and the Bay of Pigs episode in 1951, for
example, were both held by the Senate Foreign Relations Committee. Moreover,
when the Foreign Relations Committee sought an explanation of the CIA's role
in these events, it b)passed the Armed Services Committee and went directly to
the CIA. Id.
101. 5o U.S.C. ? 403d (3) (1970)
102. 117 Cong. Rec. 42.9'25 (1971) (remarks of Sen. Symington) .
103. Pub. L. No. 93559 (Dec. 30. 1971). See Editor's Note infra.
104. Tclcphorr intcn-ic c with Senate staff member, Aug. 2A, 1974
(hereinafter "SC:nitc sta i interview"].
105. Ste. e.g.. text accornpaming note 92 supra.
106. Sec text accoctpan)ing note 3.3 supra.
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513 INTERNATIONAL LAW AND POLITICS [VOL. 7: 493
subcommittees. This action was taken without prior consultation
with or even advance notice to the Senate Armed Services or Ap-
propriations Corninittee1O'
The Executives attitude toward Congress in. this matter was
described by Senator Stuart Symington (D., Mfo.) . a member of the
Armed Services Intelligence Subcommittee who had protested the
Eatecut.ive's bypassing of Congress:
The. Chairman.ofthe newly formed White House Intelli-
gence Committee, Dr. Kissinger, said that the
change should have been discussed with the proper committees
of Cono ess, that the organization details had been handled by
Mr. George Shultz, and that he, Kissinger, would arrange for'
Mr. Shultz to come down and talk to me about it.
I . said I felt any such a briefing should be given to
the committees, not to an individual :Member. That is the last I
have heard of it.1?3
Congressibital hearings to be held in 1975 on the CIA's alleged do-
mestic activities and on its $11-million intervention in Chile may dis-
closewhether the executive branch has since begun consulting with.
the congressional oversight committees.109
A particularly important instance of executive failure to coop-
erate with subcommittee investigations involves CIA's refusal to
permit the General Accounting Office [hereinafter "GAO"], Con-
gress 1ega1 and accounting arm,110 to conduct a comprehensive
CIA audit. Since 1961, when GAO concluded that "under existing
security restrictions" it could not perform useful audits,ltt GAO has
"not conducted any reviews at the Cf A nor any reviews which focus
107. 117 Cono. Roc. 42.930 (1971) (remarks of Sen. Stennis). The record
does not reveal whether the House oversight committees were consulted.
103. 117 Cong. Rec. 42,924 (1971) (emphasis added) .
109. Seri.. Symington stated that he had not been fully informed of the Chile
operation. N.Y. Times, Sept. 17. 1974. at 11. col. 1. DCI Colby stated:
I can't say that carry dollar that CIA spent in Chile was individually
approved by a chairman, but I can say that the major extorts were known
to the senior officials of the Coniress as stated.
National Security Studies Conference. supra note 63.
110. The GAO was established by the Budget and Accounting Act of 1921.
31 U.S.C. ? 41 (1970). as an independent. nonpolitical investigative arm of
Congress. See also the Budget and Accounting Procedures Act of 1950, 31 U.S.C.
65.67 (1970) , and the legislative Reorganization Act of 1970. 31 U.S.C. ?Z-
1154. 1171-76 (1970) .
111. Letter of May 10, 1974 from R. F. Keller. Acting Comptroller General of
the United States, to Hon. William Pro unirc 9 [hcreina;ter "GAO Lctter'l.
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1974) FISCAL OVERSIGHT OF THE CIA 519
specifically on CIA activities."112 When GAO has contacted the CIA,
directly or indirectly, in the context of broad reviews regarding oth-
er matters such as transfers of excess defense articles to Ic?reign
governments, it has experienced varying degrees of cooperatir.n. In
some cases the CIA has provided the information desired, but other
attempts to obtain "information from the intelligence community
-must be characterized as border line, at best"113
.Since GAO provides the mechanism through which Congress
normally audits the executive agencies whose budgets it authorizes,
the failure of the CIA to cooperate with GAO auditors and investi-,
gators presents an extremely serious problem. The intelligence sub-
committee staffs do not have the capacity to audit a billion-dollar
budget such as the CIA's, while GAO was established precisely to
perform such audits for Congress.114 Thus, by not cooperating
with GAO, the CIA effectively forecloses Congress from. auditing
.its bogls.
E. Concealment of the CIA Appropriation from Congress
Perhaps the most critical shortcomings in congressional over-
sight of CIA funding are found in the appropriation system. Under
the present scheme, only a few committee chairmen and subcom-
mittee members know the amount of the CLA appropriation; the
great majority of congressmen play no role in determining either
the details of Agency spending or even the total mmount of its
budget 115 This arrangement not only deprives Congress of an op-
portunity to express its funding priorities with respect to CIA activi-
ties but also affirmatively deceives Congress with regard to the level
of funding being approved for other programs whose appropriations
may contain funds actually destined for the CIA.
Through the annual appropriation process, Congress allocates
the Government's available financial resources. Since these re-
sources are limited, Congress in effect must choose among the sev-
eral items in the budget supermarket, spending more on the items it
judges to be most vital, economizing .on others, and eliminating
some altogether.116 Since the CIA budget is unidentified, there is
112. Id. Sce note 151 infra. -
113. Id. at 10-11.
114. See note 110 supt.
.115. Fora description o: the a?propriatson process. sec Section 11 sups.
116. S-n. McCuv-ni tir;t made the an1Lo y of a super-tar'.'.ct of r ce3. 117
Cong. Rec. ?_3.G92 (1971) .
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the CIA budget affects Congress' budgeting process in a particular-
.1y:,unEortti-nate.i.'ay,.,,by inflating the appropriations in which the
CIA's budget is hidden.117 Hence, Congress believes it is allocat-
ing a higher priority to the programs in whose appropriations CIA
funds are concealed than is, in fact, the case.its
Even the chairmen of subcommittees concerned with non-in-
telligerce matters sometimes are unaware that the appropriations
for programs under their jurisdiction include funds earmarked for
the CIA For example, in 1971 Senator Ed- and Kennedy (D.,
Mass.), Chairman of the Senate Judiciary Committee's Subcommit-
tee on Refugees and Escapees, made public receipts obtained from
GAO which he said demonstrated that much of the money appro-
priated for refugee aid in Southeast Asia was in fact being spent to
no opportunity for the members to %, eigh it against other programs
which might compete with it for federal funds. At the same time,
117. Most but not all CIA funds are probably included in appropriations for
the Department of Defense. Preston interview-Nov. '74, supra note 13. This is
reflected in the fact that the appropriations intellictence subcommittees in both
houses are largely composed of members of the Defense Department subcom='t-
tees. See text preceding note 13 supra. In 1971 Professor Futtcrrnan suggested
-that most CIA funds may be located in the $5+ billion "Intelligence and
Communications" item in the Defense Program and Budget. Futterman, suom
note 759, at 441. It has also been suggested that funds destined for the CIA nay
be hidden in appropriations for the Food for Peace program [117 Cong. Rec.
40,737 (1971) ], domestic agricultural -programs (117 Cong. Rec. 23,692 (1.971)1.
and refugees in Southeast Asia (see text accompanying notes 119-20 infra) .
1I$. This problem was discussed in the Senate in 1971:
Mr. FULBRIGHT. [B]illions of dollars of intelligence funds are con-
tamed in this [Defense Department] appropriation. No one can tell
where in this bill those funds are. When they read a line item and find
that there is so much for aircraft, or for a carrier, those may or may not
be the real amounts.
This practice gives rise to questions about every item in the
appropriation ... .
Mr. CRANSTON. Are there references in the appropriation bill to funds
Mr. CRANSTON. How are they provided for, by padding other crtego-
rim>
Mr. SYMINGTON. I am not sure I have enough knowledge to answer.
Presumably yes ...
Mr. CRANSTON. When we run through the bill, we find that there is
allocated money for pay aed allowa^ics, for individual c!athina,,. for
sub istcnc_ ... Is the way ['arse items are hand:cd, i:siated, or bloated,
In fact-some of them, at least-that will cover uo whit is in this bill for
intelligence?
Mr. #LLF.NDER Ym the Senator is correct-some of it.
117 Cong. Rcc. 42,927-31 (1971) .
for intelligence uses?
Mr. SYMINGTON. No.
 Appr..oved._For-Re1e s -2eeeft1?14--#[, RDP91-009668000 00020006-7 !
19741 FISCAL OVERSIGHT OF THE CIA 521
support CIA-directed paramilitary operations in Laos.110 Over a
year later Senator Kennedy published reports which indicated that
nearly half of the funds appropriated by the U.S. to aid victims of
the war in southeast Asia were still being diverted to CIA protects,
despite President Nixon's earlier assurances that the practice would
be ended;120 and the CIA was reported to be continuing to finance
clandestine army operations through the Agency for International
Development.''I
It appears that subcommittee chairmen remain unaware of
CIA funds in their appropriations. As yecently as April 1974,
Sena- tor Proxmire asserted that "many subcommittee chairmen in Con-
gress are not aware that they are approving appropriations for intel-
1
ligence agencies under the slight-of-hand procedures in the [
Act]. '1r: To help remedy this situation, Senator Proxmire stated
that he would ask the floor manager of every appropriation bill
whether intelligence funds were hidden in his bill.123
V. DOES THE CONSTITUTION MANDATE PUBLIC-A-1-TON OF THE
CIA BuDCET?
The question of whether the CIA budget should be hidden
from all but a few members of Congress is one of constitutional sib
ni&rnce. Not only may the Constitution mandate the reporting of
CIA expenditures to Congress.as a whole, but it may even require
publication of the CIA budget. Article 1, Section 9, Clause 7 of the
Constitution provides: -[A] regular statement and Account of. the
Receipts and Expenditures of all public Money shall be published
from time to time." This, the Statement and Account Clause, has
never been interpreted by the Supreme * Court.l=1 The "legislative
history" of the Clause, while not totally. unambiguous, is compatible
with the view that the Framers of the Constitution intended that
public account should be made of all funds expended by the federal
119. N.Y. Times. Feb. 7. 1971. at 16, col. 3.
120. 1; Y. Times,' larch 19, 1972, at 1. col. S.
121. Id. at 2, cols. 1-4.
122. 120 Cong. Rcc. 59269 (daily ed. April 11. 1974).
123. 120 Con-' Rcc. SS3 (daily ed. Jan. 31. 1974).
124. Recently. in Unitctl States v. Richarde), and 4'2 U.S.C. 2017 (b) (1970) (certain Atomic Energy Commission expenditures) .
133. For example. there has ncter been a' public accounting for the $2
billion reportedly expended to develop the atomic bomb during World. Wear 11.
Brief for Petitioners at 25, United Sates v. Rich.tndson, 413 U.S. ifr5 (1974).
 rppco For e-as" 'f7T4 CIA-RDP91-00966R000800020006-7
19741 FISCAL OVERSIGHT OF THE CIA
be attached to them when interpreting the Statement and Account
Clause.t" The most that can be said, therefore, is that during the
? lifetime of the Framers the Constitution .- as not construed as per-
witting appropriations which were ever secret from the entire Con-
gress or which were indefinitely secret from the people, while more
recent statutes authorizing such secrecy remain untested.
The plain language and the legislative history of. the Statement
and Account Clause, as well as its subsequent construction with re-
spect to the 1S11 Florida appropriation, strongly suggest that the
Clause was intended to require a full accounting of all public funds
-at least to the Congress, and probably to the people as well. It
therefore seems doubtful that the transfer method of financing the
CIA, with its resulting distortion of appropriations and published
accounts, meets the constitutional standard.140
VI.. PECOMMENDATIONS
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.141
History is not replete with examples of good sense holding
sway for long periods. Therefore, Congress must act now to
139. It is conceivable that this problem will never be judicially resolved. The
Supreme Court's Richardson decision raises the possibility that the S atement and
Account Clause may be among the constitutional provisions that cannot be
litigated. See United States Y. Richardson. 41S U.S. at 179; Richardson v. United
States, 465 F_d at 873 (dissenting opinion of judge Adams) . On the other hand,
it is possible that constitutional challenges based -on the Clause will not be
completely foreclosed by Richardson. A congressman's standing to sue in his
official capacity has not yet been addressed by the Supreme Court. However, at
least two lower federal courts have recently granted standing to congressmen.
Mitchell v. Laird, 4S8 F.2d 611 (D.C. Cir. i973): Holtzman v. Richardson. 351
F. Supp. 544 (E.D.N.Y. 1973). rcv'd on other grounds sub nom. Holleman Y.
Schlesinger, 484 F .2d 1307. See Special Committee to Study Questions Related to
Secret and Confidential Government Documents, S. Rep. No. 93-4G6. 93d Cong..
Ist Sess. 5-S (1973) [hereinafter "Secret and Confidential Documents Report'].
140. See Amieus Brief. supra note 125, at 31, for one view of what that
standard requires:
Only an accurate and identifiable head of appropriation-or,e bearing
the name and thus di-closirg at a minimum the general purpose for
which funds are being emplosed-can satisfy the constitutional obliga-
tion to account for the "Rcccipte and Expenditures of all Public
Money .
141. Young town She-_t F Tube Co. v. Saws-r, 343 U.S. 579. 654 (19517)
(jack.--on, J., concurring) .
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526 INTERNATIONAL LAW AND POLITICS [VOL 7: 443
close the loopholes and put teeth in the oversight funr-
tions.142
The Constitution may prohibit secret appropriations alt)geth-
er, but at the very least it mandates that Congress be informed re-
garding the expenditure of federal funds.1'3 That and other con-
siderations call for revisions in the present cones essional system of
budgetary oversight of the CIA. This section will explore possible
solutions to the problem of maximizing Congress' fiscal control of the
Agency while preserving the necessary degree of confidentiality.
The proposals will focus on ways in which oversight might be per-
formed more effectively within the existing legislative framework_
A. Necessary Attributes of Oversight Committees
On several occasions Congress has debated whether intelli-
gencc oversight should remain in the hands of the present subcom-
mittees or instead he vested in a joint committee or variously
constituted committees in both houses.'44 The st,-ttcture of the over-
sight group is not, however, the most important element. Rather, it
is critical that the oversight body: (I) represent Congress as a
whole; (2) have genuine investigative power and not be completely
dependent on the Agency's voluntary submission of the requisite in-
formation; and (3) actively assert control over CIA policies and
expenditures. None of these conditions is currently met.
1. The Oversight Body Must Represent the Entire Member-
ship. If, as is likely, Congress should delegate the oversight function
to a relatively small group of members, the designated body insist
be more representative of Congress as a whole than past and pre-
sent oversight committees have been. Since the committee (or corn-
mittees or subcommittees) may not be able to account to the entire
ConnCongress by reporting all the data on -which its conclusions are
based, its members must have the personal confidence of every
member of Conte ess, including "dissidents.' Although the oversight
subcommittees have traditionally been composed of senior members
142. 120 Cong. Rec. 5929 (daily ed. April 11. 1974) (remarks of Sen.
Proxmire) .
113. See text accornpaming notes 124-140 supra.
144. For a description of periodic unsuccessful efforts in the House and
Senate to change the co:umittee sNstetn of oversight. see 11. Ransom. The Intelli-
gence Establishtnrnt. 160-79 (19-10) and. L Kirkpatrick, The U.S. Intelligence
Community 60-07 (1973)_
-71-
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1974) FISCAL OVEP.S,GHT OF THE CIA 527
of the parent committees, junior members could also be seated on
the oversight body without doing violence. to the committee systent.
Despite the possible political liabilities of membership on such a
body to a junior ccngessman,"a some junior members have in the
past devoted considerable energy to solving the intelligence over-
sight problem.'as Such members may be willing to risk the politi-
cal handicaps of service on an oversight body. Further, should any
doubt arise concerning the fitness of a representative or senator to
serve on the oversight body, it would not be unreasonable to ask cli
prospective members, including those who have already served in
similar capacities, to submit to a security clearance.'-17
2. Resumption of GAO Audits. For any body to be effective
in CIA oversight, it must have independent authority to audit the
Agency. The present system, whereby the oversight subcommittees
depend on the CIA to supply information, weakens the oversight
function. GAO, which provides Congress with the means to audit
executive agencies,'45 should be utilized for this purpose.
The 1949 Act's provision that certain CIA expenditures are
to be accounted for solely on the certificate of the Director,"'"
does not entirely exempt the CIA from accounting to Congress. At
a minimum, it leaves Congress with the power to perform a compli-
ance audit of the CIA to assure that all expenditures are p:operly
accounted for by certificates from the DCI. Additionally, the Agen-
cy can grant GAO more extensive accounting access than the 1949
Act may strictly require. This was in fact done during the period
immediately following the passage of the 19:9 Act when, at the
DCI's request, GAO continued to make on-site audits as it had
done for CIA's predecessor, the Central Intelligence Group?so
345. See text accompanying note 97 supra.
146. Among such members are Reps. Robert Drinan (D.. Mass.) , Michael
Harrington (D., Mass.). and Paul McCloskey (R.. Cal) and Sen. Alan Cranston
(D., Cal)
347. According to DCI Colby. "security clearances do not enter into the
picture in providing classified infonnation to a member of Congress." Colby letter.
supra note 60. However, the idea of subjecting members of Congress to security
clearances is not a new one. Accordin, to Sen. Barry Coldwater (R.. Ariz.)
?'[a]ny Senator can attend briefings by the CIA if he is cleared for top secret."
120 Conn. Rec. 9G1_ (daily cc.. June 4. 1974) .
I-IS. Sec text accorrtpamving note 110 supra.
149. 40 U.S.C. ? 40ij (1970). Cf. text accotupansing note S3 .supra.
150. GAO Letter. supra note 111. at S. In viesv of the accounting provisions
of tae 1949 Act. however. GAO referred questionable payments to the CIA
Couti,troller's Oince `..)r corrcctise action and made no audit s:i a.ever of un-
vouchered expenditures. 1d.
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523 INTERNATIONAL LAW AND POLITICS [VOL. 7:.93
However. GAO has not conducted any reviews at the CL- nor any
reviews which focus specifically on CIA activities since 1962.151
GAO's present position vis-a-vis the CIA was recently described by
the Acting Comptroller General of the United States:
From prior experience, it is our vier that strong endorsement
by the Congressional oversight committees will be necessary to
open the doors to intelligence data wide enough to enable us
to perform any really meaningful reviews of intelligence
activities.152
. The necessity for confidentiality does not foreclose the possi-
bility for GAO audits of the CIA. GAO routinely audits the sensi-
tive National Security Agency [hereinafter " N~SA"]?sa Indeed, a
recent GAO-'NSA arrangement expands the scope of that audit-1-54
The plans worked out with NSA could certainly be adapted for
CIA audits. Under the plan which was in effect from 1955 through
1973, two or three GAO staff members who had special clearance
were assigned permanently to NSA to perform compliance audits of
NSA vouchers and accounts. These continuous audits were per-
formed on NSA premises or, at designated records storage sites
where the confidentiality of NSA documents could be maintained."
In late 197, and early 1974, NSA and GAO discussed adding
management-type review to the compliance audits already being
done and agreed to increase the number of GAO staff members
cleared for NSA audits from. two to ten and to begin the enlarged
151. In 1939 "comprehensive audits" cover-ng not only the expenditure of
funds but also the cfciency and economy of utilization of property and person-
nel were instituted. These audits continued until 1952, when GAO concluded (1)
that under existing security restrictions it did. not have sulacient access to Make
comprehensive reviews on a continuing basis which would produce evaluations
helpful to Congress and (2) that the limited type of audit which it had
conducted in the years prior to 1959 would not serve a worthwhile purpose. CIA
concurred with the resultant GAO proposal to terminate all audit efforts in 1932.
Id. at 9.
152. Id. at 13.
153. Id. at 11-13. NSA was established as an agency under the control of the
Secretary of Defense by a classiF.ed executive order in November 1932. Walden, The
C.I.A.: A Study.in.the Arrogation of Administrative Powers, 39 Gco. Wash. L.
Rev. 66, 67 (19M). It performs technical functions in support of Government
intelligence activities. United States Government Manual 209 (1973-74) .
154. GAO Letter, supra note I11. at 13.
155. Id. at 11-12. GAO refrained from publishing the results of its NSA
audits so as not to violate Pub. L. No. 55.30 (Act of May 29, 1959, 73 Stat. 63).
,which forbids disclosure of any information. warding NSA activities. However, it
did hold in`orrnal !iscusiions NSA to review the audits and rroivc problems.
GAO Utter. supra note 111, a: 13.
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528 1NTERNAI OVAL LAW AND POL CS [VOL. 7: 493
However. GAO has not conducted any reviews at the CLA nor any
reviews which focus specifically on CIA activities since 1952.2s1
GAO's present position vis-a-vis the CIA was recently described by
the Acting Comptroller General of the United States:
From prior experience, it is our view that strong endorsement
by the Congressional oversight committees will be necessary to
open the 'doors to intelligence data wide enough to enable us
to perform any. really meaningful reviews of intelligence
activities.152
The necessity for confidentiality does not foreclose the possi-
bility for GAO audits of the CIA. GAO routinely audits the sensi-
tive National Security Agency [hereinafter "NSA"]? Indeed, a
recent GAO-'NSA arrangement expands the scope of that audit.'-14
The plans worked out with NSA could certainly be adapted for
CIA audits. Under the plan which was in effect from 1955 through
1973, two or three GAO staff members who had special clearance
were assigned permanently to NSA to perform compliance audits of
NSA vouchers and accounts. These continuous audits were per-
formed on NSA premises or at designated records storage sites
where the confidentiality of NSA documents could be maintained?55
In late 1973 , and early 1974, NSA and GAO discussed adding
management-type review to the compliance audits already being
done and agreed to increase the number of GAO staff members
cleared for NSA audits from. two to ten and to begin the enlarged
151. In 1959 "comprehensive audits" covering not only the expenditure of
funds but also the efficiency and economy of utilization of property and person-
nel were instituted. These audits continued until 1952, when GAO concluded (1)
that under existing security restrictions it did not have sufacient access to make
comprehensive reviews on a continuing basis which would produce evaluations
helpful to Congress and (2) that the limited type of audit which it had
conducted in the years prior to 1959 would not serve a worthwhile purpose. CIA
concurred with the resultant GAO proposal to terminate all audit efforts in 1952.
Id. at 9.
152. Id. at 13.
153. Id. at 11-13. NSA was established as an agency under the control of the
Secretary of Defense by a classiF.ed executive order in November 1952. Walden. The
C.A.: A Study in.the Arrogation of Administrative Powers. 39 Geo. Wash. L.
Rev. 66, 67 (1970). It performs technical functions in support of Government
Intelligence activities. United States Government Manual 209 (1973--74).
154. GAO Letter, supra note Ill, at 13.
155. Id. at 11-12. GAO refrained from publishing the results of its NSA
audits so as not to violate Pu;r. L. No. 85.36 (Act of May 29, 1959. 73 Stat. 63).
which forbids disclosure of any information rc~7arding NSA activities. However, it
did hold informal c_iscussions :,ith NSA to review the audits and r solve problems.
GAO Lester, supra note 1 I1, at 13.
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review on selected parts of NSA's activities with fiscal year
1975.155 By May 1974, seven GAO staff members had received
the necessary clearance, and GAO had been advised that the cl, ar-
ance required for work at NSA would generally be acceptable for
performing similar work at other organizations within the intelli-
gence community with the exception of the CIA.-' Research re-
veals no reported leaks by GAO personnel of confidential informa-
tion concerning NSA, and there is no reason to believe that the
chance of leaks concerning the CIA would be any greater. Never-
theless, the CIA has declined to grant GAO the access necessary
for a competent audit_253
The CIA has an estimated 15,000 employees," all of whom
have security clearances. To add some eight or ten GAO employees
to the number of persons cleared by CL\ would not appear to be an
insuperable burden. Congress, dependent solely on the CIA's own
accountings since 1902, will not be able to fulfill an effective over-
sight function until it insists that the Agency grant GAO the access
-including appropriate security clearances for several of its staff:
-necessary for comprehensive reviews on a continuing basis.
1. The Oversight Eody Must Assert Control. To preclude the
oversight groups from taking a passive role, they should be required
to meet at least monthly and to issue detailed reports to Congress
on CIA activities and expenditures.io? The oversight bodies should
either participate directly in the budget allocation process or have
ex officio representation on the Appropriations Committees' intelli-
gence subcommittees. Through the GAO, they should carry out a con-
tinuous, independent audit of Agency spending. Any oversight body
should be well enough informed as to all aspects of the CIA that it
can provide Congress with an explanation whenever a question
about the Agency arises. To meet this standard, the oversight body
needs the power not only to perform independent audits through
c
156. Id. GAO agreed on the new plan notwithstanding its recognition that
the special clearances required for GAO staff members who would be involved. in
such an audit would be expensive, requiring at least six months to complete, that
higher clearances might be necessary for some aspects of the audit, and that the
results would be highly classified and strictly limited in their distribution. Id.
157. Id.
15S. See text accontpaming ito:cs 111-13 supra.
159.'119 Co:t,;. Rec. GSGS (19;3) (remarks of Scn. Proxmire)
lfxn. if nccesvrv for ecur:,v rcascn:? an oversight be.(!y might compile
Ct rnhlcte rep,. is to be nude available otay. to other conk-res:,irtcn who h_-ve
submitted to security clearances. "Sanitized" ye lions of such reports might be
prepared for the use of those members who had not been cleared. Sec text
accompaning note 173 infra.
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530 INTERNATIONAL LAW AND POLITICS [VOL. 7:'493
the GAO but also to require the Agency to provide whatever addi-
tional information is needed.
Two bills attempting to meet this need were introduced in the
93d Congress and are likely to be reintroduced in the 94th Con-
gress. The "Joinr Committee on Intelligence Oversight Act of
1974,"161 introduced by Senator Baker and eleven co-sponsors,
would require the DCI and the heads of other intelligence organiza.
tions to keep a proposed Joint Intelligence Oversight Committee
"fully and currently informed with respect to all of the activities of
their respective organizations," and would give the Committee "au-
thority to require from any department or agency of the Federal
Government periodic written reports rewarding activities and opera-
tions within [its] jurisdiction.'16 The bill would grant the joint
Committee subpoena power and provide that any witness failing to
comply with a subpoena would be subject to punishment for con-
tempt of Congress.163 The other bill.161 introduced in the House
by-Representative Ronald DeIlurns (D., Cal.), would require the
DCI, at the request of a committee or subcommittee chairperson, to
provide the oversight subcommittees with information sufficient to
enable them to determine "whether the expenditure of funds by the
Agency conforms to the authorized functions of the Agency and the
congressional intent in establishing the Agency:"165 Although the
bill does not specify any sanction, an oversight body which had sub-
poena power would be entitled to invoke the contempt statute,16a a
threat which may encourage the DCI to provide the requested
information.26T
161. S. 4019. 93d Cong.. 2d Sess. ? 3 (b) (1974) [hereinafter "S. 4019'.
Although Sen. Baker requested that the bill. receive priority consideration, no hear-
ing were,held on it by the 93d Congress.
162. Id.
163. S. 4019, supra note 161, 4 (b) . The penalty for contempt of Congress.
a misdemeanor, is a fine of not more than $1,000 nor less than $100 and
imprisonment in a common jail for 1.12 months. 2 U.S.C. ? 192.
164. H.R. 1379;. 93d Cong.. 2d Sess. (1974). The House Armed Services
Committee scheduled no action on the bill. Hogan letter. supra note 70.
165. H. R. 1379$, supra note 164.
M. Although contempt of Congress is a severe sanction carrying a mandato-
ry jail term. Congress has occasionally- been willing to use it Sec, e.g.. House
Comm. on Armed Services Proceedings Against George Gordon Liddy. H.R. Rep.
No. 93-453, 93d Cong.. 1st Scss. (1973) and cases enumerated therein.
167. The DCI might claim cxccu:isc privilege in xuha situation For an
argument that executive prisile c is not applicable in this context. sec ]rearing,-s
on S. '2'224. supra note 54. II"-_LI (testintonv of Raoul Purger). Sec generally
FXccative Privilege in I11 Esccntisc 1'ri'.ilc,r. Secrecy in Coserr.zncnt. Freedom
of Iitfotmation, l:chit:5~ bcforr t'.:e ... Commiuce Oil Gorr:nment Oceratiuns
and . . . Committer. on the Judiciary. U.S. Scnate, 9:.d CruiG., 1st Scss. (1'l:3) .
drvr,rnvrcrl Pnr F2alanea 9QQ /11114 ? (-iA-g fP91-(109E R0008000 0006-7
 Approved FQL.Release.2 6 -1-1-X14--CC1IA--R-DP91-00966f 'O04f f)002Cifi3f} -
-76
These bills, combined with the contempt power, would facili-
tate the flow of information from the CIA to Congress. However,
an even more effective measure would provide for regular, perhaps
monthly, CIA reports to the oversight body which would enumerate
the Agency's activities and their costs. The contempt power 'would
assure that the monthly reports were in fact made. In addition,
Agency funding lot the ensuing year might be conditioned on a de-
tailed justification of current expenditures. Such legislation, coupled
? with a congressional mandate requiring the oversight body to meet
frequently, to use its independent investigative authority, and to re-
port regularly to Congress, would help assure that the oversight
body actually performed its duties and made full use of its expand-
ed staff and its investigative powers.
4. The Form of the Oversight Body. Although the above con-
siderations are important regardless of the forni the congressional
oversight body takes, some of the weaknesses of the present system
. ? are directly related to the fact that oversight is the responsibility of
subcommittees. Unlike full committees, subcommittees are not re-
quired to meet regularly and do not have their own staff.Ics In ad-
dition, when the subject matter covered by a subcommittee is tan-
gential to the full committee's principal concern, as intelligence may
be to the Armed Services Committees, it is likely that the ancillary
matter receives less attention.1o9
Oversight by a full committee, either a joint committee as
pro- each house would be
mt
l
1974) FISCAL OVERSIGHT OF THE CIA
er or } a com
posed by Senator Ba
l
tl.R. Doc. 92-334.
171. Sec. e.g.. 120 Cong. Rec. G5S-S (daily ed. July If.. 1.117.1) (1cm3rk~ of Rep.
tlarrington) .
a signiticant tmprovemcnt uVct
Monthly meetings would be required,170 a full-time professional
staff would be available, and the interest and efforts of the mem-
bers and staff would be focused on the CIA or, as is more likely;
the entire intelligence community. Although a joint committee
might appear to be more efficient in that it would avoid duplication
of efforts, an autonomous committee in each house might better fa-
cilitate legislative, as opposed to purely consultative, furctions.17t?
1GS. Under the present arrangement, staff support for each of the four
intelligence subcommittees consists of part-time assistance from one or two pro-
fescional members of the committee staff.
1G9. This possibility was r.ticcd by Sen. Lowell Weicker (R.. Conn.) . a
co-sponsor of S. ?1019. supra note Yl, in rcmarks at The New York University
School of 11?.x. Oct. 31, 10-4.
170. Scc, e.ti.. Ruic 731, of the house of Renrescntativcs. schich rr(Iuires
; couuflhttc s to meet Out less than month(?. lluusc Rules an.1 st:utu31,
stand ir.
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532 INTERNATIONAL LAW AND POLITICS [VOL. 7: 493
B. Participation by the Entire Congress in Intelligence Oversight
Participation by the entire Congress in the oversight process
would be a more sweeping change and would have more radical
consequences than a resu-ucturing of the present subcommittee sys-
tern. Although the daily work of oversight would continue to be
done by committee, the committee would make complete reports to
Congress, with decision-making reserved for the full House and
Senate rather than effectively delegated to the oversight body. Un-
der such an arrangement, "Committees on intelligence" might have
a relationship to Congress similar to that presently enjoyed by other
standing committees, except that their reports would be discussed
in secret session rather than publicly.1-2 Alternatively, the over-
sight committees might report fully only to those members who
have received security clearances or who specifically apply to the
committees for informa tion.i-3 Because some of the problems pre-
sented by. the various possible arrangements for plenary congres-
sional oversight differ as between the House and the Senate, the
two houses will at first be considered separately.
1. The Senate. The Senate presently utilizes a mechanism
whereby the entire membership considers classified information in
executive session. For many years, it held secret sessions whenever
it considered a treaty, and it still holds occasional executive sessions
to discuss classified or defense matters.1T4 In most instances, it later
issues a record of the secret session afz.er deleting classified informa-
tion?75 A senator who releases confidential information obtained in
172. H.R. Res. 1231, 93d Cong., 2d Scss.. (1974). proposed by Rep. Harring-
ton, contains a variant of this idea. The bill would require a new oversight
committee in -the House to keep complete records and transa-ipts of its hearings,
which would be available to all members of Congress. 120 Cons. Rec. 6553 (daily
ed. July 16. 1974).
173. For example. S. =4. supra note 103, provided that oversight commit-
tees receiving information from the CIA should promulgate regulations under
which classified information received by the committees might be given to con-
gressmen and their staffs who requested it. It should be emphasized that such an
arrangement would work only so long as the oversight body was truly representa-
tive and enjosed the trust of all factions in Congress. Otherwise, the committee's
power to pronruigate regulations for access to CIA information would appear to
be a smokescreen whcreh% the co,umittcs- might restrict rather than frcili',atC the
flow of in;urru Lsiun-precr~ly tiro appear. utc s.-hich 1;. ti led to the c. rtent need
for reform.
17-1. 29 Cong. 0. 1757 (1971). The Senate held S such me-ting-N between the
end of World War 11 and ::rid-1971.
175. See. c.g.. 119 Cong. Rcc. 15.353.71 (daily ed. Aug. 1, 1973). the expur-
gated record of a Senate exeeutisc scscion held to consider the nomination of
William Colby as DCI.
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secret Senate proceedings may be expelled from the Senate,lre but the
severity of this penalty makes its use unlikely.1'T A sanction o: ex-
clusion from further executive proceedings might be more effective
in that the Senate would be more willing to invoke it is Another
way to reduce the likelihood of leaks might be routinely to clear all
senators and to exclude from executive sessions any senator who
specifically asked not to be subjected to security clearances?--9
Since there are only 100 senators, each with a six-year term of of-
fice. routine clearance of all senators would not be an intolerable
administrative burden.
2. The House of Representetives. The House of Representa-
tives, by virtue of the large size of its membership and their brief
term of office, presents more problems with regard to plenary over-
sight than. does the Senate. Although it has not held a secret meet-
ing in many years, the House has a procedure for executive sessions
of the- full membership which it could adapt to meet modern
requirements??? Exclusion from future secret sessions could be a
stronger sanction in the House than in the Senate, since representa-
tives must face the electorate every two years and would have to ex-
plain their exclusion to the voters soon after the fact, while the issue
was still "hot." The device of routine security clearances may be
less practical for the House than for the Senate, since its 435 mem-
bers serve two-year terms and processing a clearance requires at
least six months?St On the other hand, however, the "numbers of
Members of Congress are not very large by comparison to the num-
bers of people in the executive branch that get this kind of
information,"15= and the people deserve representatives who are
entitled to know everything that occurs in government iss
176. Senate Rule 35. S. Doc. 93-I.
177. See, c.g.. Hearings on S. 2224, supra note 54, at 4-5.,89 (remarks of Sen.
Cooper). The Senate did not invoke the expulsion sanction when Sen. Mike
Gravel (D.. Alas) read classified information concerning the Vietnam war into
the public record in 1972. See note 1S5 infra.
178. Such a sanction would not he an ennpty one, since the senator involved
would have to justify his exclusion in a future campaign for re-election.
179. See note 147 supra.
180. House Rules and Manual. supra note 170. Rule 29.
161. GAO letter, supra note 111. at 12.
1S' Hearings on S. 2224. supra note 54 at 55 (testimony of Herbert Scoville.
Jr.).
153. Sen. Hughes (D.. Iowa) has summarized this viewpoint:
I Fcrsonally feel that the people of Iowa elected ire to represent their
irt;creats with the CiA as ,clt as every other facet of Government. amid
that I have an enuticment to to inform ed. And if I am untr u~tworth.,
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534 INTERNATIONAL LAW AND POLITICS [VOL. 7. 493
An administratively practical compromise might be to clear
only those representatives who specifically request clearance and to
limit the oversight committee's dissemination of confidential infor-
mation to the cleared representatives. In that way, the information
would be available to congressmen who were sufficiently ii terested
in the CIA and other intelligence or nizations to request clear-
ance, while time, money, and effort would not be expended clear-
ing those members who lacked that interest.
$. A Complication Common to Both Houses: Legislative Irn=
munity. The Speech or D--bate Clause of the U.S. Constitutionts'
creates an obstacle to broad congressional involvement in intelli-
gence oversight by granting immunity from criminal prosecution to
members of Congress who breach security by publishing classified
information. This Clause has been held to provide immunity not
only for statements made on the floor of either house, but also
"against prosecutions that directly impinge upon or threaten the
legislative process."tom Although the Supreme Court has not de-
fined the limits of the immunity conferred by the Clause, its deci-
sion in Gravel v. United Statestsfi indicates that at least the follow-
ing types of conduct would be protected under the Clause in the
case of a member or member's aide having possession of a classified
document:
then I feel the CIA ought to tell the people of Iowa and the country
why I am untrustworthy and on what they base it.
.
Colby Hearings, supra note 9. at-53.
164. The Speech or Debate Clause reads as follows:
The Senators and Representatives. _ .. shall in all Cases, except Trra-
son, Felony, and Breach of the Peace, be privileged from Arrest during
their Attendance at the Session of their respective Houses, and in going
to and returning from the same: and for any Speech or Debate in either
House, they shall not be qucs:ioncd in any other Place.
U.S. Const. art 2, ? 2. The Clause does not immunize members of Congress from.
arrest for violating the law by making classified information public. for that is a
criminal violation, and the ricmbcrs' privilege from arrest has been held to
extend only to civil arrests. See Gravel v. United States.. 408 U.S. 606. 614-15
(1972). It does, however, cftcctively immunize members of Congress from prose-
cution for releasing classified information.
155. Gravel v. United States. 40S U -S. 606, 616 (1972).
18G. The conduct held protected in Grnuel was a reading of the classified
"Pentagon Papers" into the public record at a tnidnight meeting of a subcommit-
tee of the Senate Committee on Public %Vorks. The Court held that the general
rule restricting judicial inquiry into matters of lc gislative purpose and operations
precluded it from questioning the "regularity" of the meeting when there was no
suggestion that the subcouunittre itself wis unauthorized or that the war in
Vietnaat was an issue bclond the purview of congressional debate and action. 403
U.S. at 610. n. 6.
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1974] FISCAL OVERSIGHT OF THE CIA 535
1. Any speech or debate on the [House or] Senate floor con-.
eerning the classified document.
2. Any speech during a committee meeting, hearing, etc.
-3. Any reading from the classified document either (.n the
floor or in a committee meeting.
4. Any speech concerning the classified document in commit-
tee reports, hearings, or in resolutions.
5. Any placing of a classified document into the public record.
6. Any conduct at a committee meeting or on the [House or]
Senate floor with respect to the classified document and any
motive or purpose behind such conduct.
7. Any communications between a member and aide during
the term of the aide's employment with respect to the classified
document if related to a committee meeting or other legislative
act of the member.157
This broad immunity prompts an argument that classified in-
formation concerning the CIA should not be shared with any more
than an absolutely necessary. small number of congressmen. In this
connection there is perhaps less concern about disloyalty than the
possibility that conscientious objection to certain CIA activities
might lead a member to release classified information. Routine se-
curity clearances might identify the rare disloyal member and ex-
clude him from receipt of classified information before he ever
gained an opportunity to release it, but they probably would not
identify and exclude the member whose release of secrets might be
motivated by his very loyalty to his country. Perceiving this difficul-
ty, Senator Davits has stated that "an exact corollary to immunity is
our responsibility for our own members and our owns security,-l89
apparently referring to the availability of the sanction of expulsion
for releasing confidential infonnation.15` However, since the Sen-.
ate has been unwilling to invoke this sanction in the past, it must ei-
ther determine to use the sanction of expulsion or devise a lesser,
but meaningful, sanction that it would be willing to invoke. The
House must likewise agree on a suitable sanction.
4. Physical Scrurily Rcquirrrnents. In addition to the risk cre-
ated-or exacerbated-by cones essmen's constitutional immunity
with respect to the information contained in classified documents,
137. Sccrct and Confidential ncci -nncnt> rc*>ort, supra nnte 1: . at 10-11.
1S3. hearing, on S. 2224. supra Hatt 5-1. at JI.
1S4. See note US supra and arcompanving text.
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I?IT'PNAffONAL LAW AND pOLrr[CS [VOL. 7: 493
535
there is also some risk associated with the documents themselves.
Unlike CIA headquarters, the Capitol and the Congressional Of, cc
Building are open to the public. How, then, can classified docu-
ments be kept secure and still be conveniently available to large
numbers of senators and representatives?
The requirements for ensuring the ph`sicadsecurity of
detail
fied documents in congressional building
during Senate hearings in 1972.1?0 A management consultant on
security and intelligence matters, a former CIA employee, de-
scribed the basic requirements for a "secure area" in which classi-
fied documents would be stored and consulted and made the follow-
ing recommendations:
..1) An early start should be made for detailed security by
planning so that the mechanism can be in place before the flow
of material starts.
2) The security system should include a secure area
which would include a vault and reading /conference room
protected by a reception area and necessary alarms.
3) Provision should be made for control of the docu-
ments to include logs, rules for storage and removal, destruc-
tion, or return to the originating agency.
4) The responsibility for the security should be clearly
placed and sufficient staff should be made available to estab-
lish, operate, and monitor the system. B
5) Where problems arise, close liaison with the CIA_S41
be helpful in finding solutions that are workable and safe.191
Admittance to the secure area would-be limited to those named on
a list held by a guard. Those few members who required continuous
access would be permanently listed, while others with only occa-
sional interest in the secure area could be specifically cleared for ac-
cess at those times.192 Removal of classified documents from the
secure area would be permitted only when absolutely necessary; in
such cases "there should be some means whereby it is taken out by
194. Hearings on S. =4. supra note 54.
191. Id. at 95.
192. Witnesses at the ltearings generally emphasized the importance of k ep-
ing the number of persons with access to the secure area as small as Possihle
consistent with the principle of ''need to know.' See. e.g., id. at 19, 23. 51
(testimony of Iter'bert Scosi.Ue, Jr.) and at 93. 99.104 (testimony of Joseph
SmF lt) . But ice the zerctazks of Sen. J~sits to the cficct that every member of
Congress must vote. and thcr-fore all have an equ.tl need to know. Id. at S1.
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1974] FISCAL OVERSIGHT OF THE CIA - ? _.537-
a courier and brought back the same day."193 To prevent "techni-
cal penetration" or "bu.,jing." it was suggested that conferences in-
volving extensive discussion of CIA ma,crial should be held only in
the secure area, which could periodically be "swept" to minimize
the possibility that sersitive conversations might be overheard.194
This testimony indicates that physiml security for classified docu-
ments can be compatible with procedures whereby oversight com-
mittees in both houses might make available to other members of
Conn ess the classified information on which their recommenda-
tions are based.195
C. Rejorrrting the Appropriation Process
A flaw in the oversight of CIA funding which urgently re-
quires attention is the present appropriation system, whereby CIA
funds are hidden in other appropriations and are never considered
by, or identified to, Congress as a whole.
1. The Baker-111eicker Proposal. The "Joint -Committee on
Intelligence Oversight Act of 19"4,"1D5 contains the follo:+?ing
provision:
No funds may be appropriated for the purpose of carrying out
any intelligence or surveillance activity or operation by any of-
fice; or any department or agency of the Federal Government.
unless such funds for such activity or operation have been spe-
cifically authorized by legislation enacted after the date of en-
actment of this Act.
Senator '(Wicker (R., Conn., a co-sponsor of the bill) has stated
that this provision would jive the joint committee total control of
the intelligence agencies' budgets.'97 The purpose of the bill may
indeed be to supersede the funding provisions of the 1949 Act, but
the bill would not, in fact, have that effect. IL would only restrict
the use of funds appropriated for the CIA-of which there are
none presently-while the practice of financing the CIA through se-
193. Id. at 93..Cf. H.R. Comm. on Armed Services. Rules Governing Proce- -
?dure. Leg. Cal. of H.R. Comm. on Armed Services. 93d Cong.. No. 8 (Aug. 23.
)974) . at viii.
194. Hearings on S. 22 supra note 54. at 93. 100.02.
195. Id. at 93 (tcstimonv of Joseph Smith) : sec also id. at 17. 24-27 (testimo-
ny of Herbert Scoville. Jr.) .
19G. S. 4019. supra note 151.
197. Rcrarks at The New York University School of Law. Oct. 31. 1974.
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533 INTERNATIONAL LAW AND POLITICS [VOL. 7: 493
Bret transfers from other approi riations would continue. Thus, the
Baker-Weicker bill illustrates the point that there can be no mean-
ingful reform of the .1ppropriation process without expressly
amending or replacing the. funding mechanists of the 1919 Act so
as dearly and unequivocally to end-or limit-the practice of
financing the Agency by secret transfers.
? 2. Limitations on Funds Transferred to the CIA under the
1919 Act. In order to assert control over the purposes for which the
CLq spends its funds while continuing to finance the Agency
through. transfers, Congress might expressly apply to the CIA limi-
tations included in other appropriations Bills. Such an unequivocal
expression of congressional intent would unquestionably prevail
over the CIA's general exemption from appropriations limitations
under the I9~9 Aci.193 Conte ess passed such an express limitation
? for the first time in December 1974, as part of the Foreign Assistance
Act of 1974.1e9
Congress might also combine a measure of tong essional con-
trol with transfer funding by placing a ceiling on the amount of
funds transferable under the 1919 Act without specific congression-
a1 approv'a1210. Enactment of such a ceiling would limit the
amount of funds available to the Agency, whereas appropriations
limitations would limit the purposes for which Agency funds may
be expended.
The enactment of express appropriations limitations or ceilings
on Agency funding is not a political impossibility. Since such bills
would not alter the basic transfer method of funding. they do
not necessarily invite opposition from members who prefer that
CIA appropriations remain secret. Indeed, in the political climate
prevailing at the bed nning of the 94th Congress,=01 it may not be
entirely naive to propose that Congress reassert its power of the
purse by expressly amending the 1949 Act.
193. For a discussion of the disputed extent of the exemption mandated by
the 1949 Act when appropriations limitations are not expressly applied to the
CIA, see text accompanying notes 79-83 supra.
199. Pub. L. No. 93-559 (Dec. 30. 1974). See Editor's Note infra.
'204. Scn. S)mington made such a proposal in 1971 as an amendment to a
Defense Department appropriation bill. 117 Cong. Rec. 42.923 (1971). The pro-
posed amendment was rejected by a 56-31 vote. Id. at 42 932.
201. The "po.t?Watergate" reaction against sccrccy. within the executive
branch and the test that the 94th Congress includes several new members elected
on "ss,?cep?tlean" platforms point toward mngiesaiouat ~.illin~t+e a to athlresc the
19-19 Act directly.
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1974] FISCAL OVERSIGHT OF THE CIA 539
3. A One-Line Appropriation For rite CIA. Passage of a bill
mandating a one-line, ic., unitemized, appropriation for the CIA
and terminating the trz.nsfer funding mechanism would reassert
Co'ngress' constitutional power to establish budgetary priorities and
need not endanger the national security.=02 Such a proposal would
not limit the Agency's use of appropriated funds. Under the pro-
posed system, specific limitations would have to be imposed in the
same way as under the present system, by prohibitions expressly ap-
plied to the Agency.
The principal arguments in favor of the single-line appropria-
tion are that it would permit Congress to express its sense of priori-
ties and that it would "allow Congress and the taxpayer to know the
exact amount of money going into other Government
prop ams""03 by ending the artificial inflation of other appropria-
tions with sums actually destined for the CIA. Other benefits would
accrue as well. For example, if the amount of the CIA budget were
known and discussed, congressmen might be motivated to ask more
questions of their colleagues on the intelligence oversight bodies,
thereby encouraging the conscientious performance of oversight du-
202. A model bill might read as follows:
A bill to require that appropriations be made specifically to the Central
Intelligence Agency.
Be it enacted by the Senate end House of Representatives of the United
States of America in Congress assembled, That commencing with the fiscal year
beginning [date]-
(1) the Budget of the United States, submitted pursuant to section 201 of
the Budget and Accounting Act. 1921. shall show proposed appropriations. esti-
mated expenditures, and other related data for the Central Intelligence Agency.
and
(2) appropriations shall be made to the Central Intelligence Agency in an
appropriate appropriation Act-
For the purposes of this section. proposed appropriations, estimated expenditures.
and other related data set forth in the Budget for the Central Intelligence Agency.
and appropriations made to the Agency, may be shown as a single sum with respect
to all functions and actin itics of the Agency.
Sec. 2. Commencing with the fiscal year beginning (date), no funds appro-
priatcd to any other-Department or agency of the United States shall be made
available for expenditures by the Central Intelligence Agency.
The proposed bill is identical to S. 2231, 92_d Cons., Ist Sess. (1971) , pro-
posed by Sen. Gcorge McGovern (D., S.D.). See 117 Cons. Rcc. 23.692
(1971). The bill died in the Senate Armed Services Committee. See also an
amendment to the Fiscal Year .1975 military procurement bill proposed by Sen.
William Proxmire (D.. Wis.). which would hase called for disclosure of the total
amount requested in the buc.'yet for "the national ir?.tciligencc program." 120
Con,. Rec. 9:71 (daiiv ed. f une 4. 1574). The amendment was rejected afte-
exteuiise d cb.rtc by a yotc of 55.33. Id. at 9613.
203. 117 Cong. Rcc. 23.G32 (1971) (rcnur: