TRANSCRIPT OF HFAC BRIEFING

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00389R000400720008-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 24
• Document Creation Date: December 27, 2016
• Document Release Date: August 9, 2012
• Sequence Number: 8
• Publication Date: August 10, 1988
• Content Type: MISC

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CENTRAL INTELLIGENCE AGENCY
Office of Congressional Affairs
Washington, D.C. 20505
Telephone: [phone]
TO: Ms. Dara Schlieker
House Foreign Affairs
Attached is the transcript of HFAC Bfg
14June88s're H.R. 3822-
10 August 1988
FORM 1533 POBSOLETE
REVIOUS
2-86 EDITIONS.
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STATEMENT OF THE DIRECTOR OF CENTRAL INTELLIGENCE
BEFORE THE FOREIGN AFFAIRS COMMITTEE
HOUSE OF REPRESENTATIVES
14 JUNE 1988
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MR. CHAIRMAN AND MEMBERS OF THE FOREIGN AFFAIRS COMMITTEE,
I AM PLEASED TO EE HERE TODAY TO SHARE SOME OF MY THOUGHTS ON
H.R. 3822, THE INTELLIGENCE OVERSIGHT ACT OF 1988. SINCE THIS IS
THE FIRST TIME I HAVE APPEARED BEFORE THIS COMMITTEE AS DIRECTOR
OF CENTRAL INTELLIGENCE, I ALSO WANT TO TAKE THIS OPPORTUNITY TO
PEOVIDE YOU 1 WITH MY VIEWS ON THE RELATIONSHIP BETWEEN THIS
COMMITTEE AND THE CIA.
THE VIE4:S EXPRESSED IN THIS STATEMENT ON H.R. 3822 REFLECT
THE POSITION OF THE ADMINISTRATION. I DRAW YOUR ATTENTION AT THE
OUTSET TO THE ADMINISTRATION POSITION, AS CONVEYED TO CONGRESS IN
THE PRESIDENT'S LEGISLATIVE MESSAGE, THAT A BILL WHICH FAILS TO
PRESERVE THE FLEXIBILITY AND AUTHORITY. THE PRESIDENT NEEDS TO
CONDUCT INTELLIGENCE ACTIVITIES EFFECTIVELY WILL NOT BE ACCEPTABLE
TO THE PRESIDENT.
MR. CHAIRMAN, MY TESTIMONY TODAY WILL BE THE THIRD TIME I HAVE
TESTIFIED ON INTELLIGENCE OVERSIGHT LEGISLATION. I APPEARED LAST
NOVEMBER BEFORE THE SENATE INTELLIGENCE COMMITTEE TO TESTIFY ON
SIMILAR LEGISLATION AND IN FEBRUARY BEFORE THE HOUSE INTELLIGENCE
COMMITTEE ON H.R. 3822. IN MY TESTIMONY BEFORE THOSE COMMITTEES,
I FOCUSED PRIMARILY ON WHETHER THE LEGISLATION WAS TRULY NECESSARY,
AND ON THE PRACTICAL IMPACT OF THE OVERSIGHT BILL ON THE
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INTELLIGENCE COMMUNITY. I INTEND TO ADDRESS BOTH POINTS IN MY
TESTIMONY TODAY ON THE HOUSE BILL.
THE NEED FOR LEGISLATION
IN MY REMARKS BEFORE THE SENATE AND HOUSE INTELLIGENCE
COMMITTEES I QUESTIONED THE NEED FOR THIS TYPE OF LEGISLATION.
ALTHOUGH BOTH INTELLIGENCE COMMITTEES SUBSEQUENTLY DECIDED TO
RECOMMEND APPROVAL OF THE LEGISLATION, I STILL BELIEVE THAT THIS
LEGISLATION IS NOT A NECESSARY RESPONSE TO THE CONCERNS MEMBERS OF
THE CONGRESS HAVE EXPRESSED ABOUT THE OVERSIGHT OF COVERT ACTION.
As YOU KNOW, THE PRESIDENT RECOGNIZED LAST YEAR THAT THERE WAS
ROOM FOR IMPROVEMENT IN THE WAY THE TWO BRANCHES WERE MEETING
THEIR RESPONSIBILITIES. AS A RESULT, HE TOOK CONCRETE,
SUBSTANTIAL STEPS TO ESTABLISH IMPROVED PROCEDURES TO ENSURE THAT
CONGRESS IS GIVEN THE OPPORTUNITY TO PLAY ITS APPROPRIATE.
OVERSIGHT ROLE. THESE NEW PROCEDURES, IN THE FORM OF A NATIONAL
SECURITY DECISION DIRECTIVE ON SPECIAL ACTIVITIES (NSDD-286), MUCH
OF WHICH HAS BEEN DECLASSIFIED, CLARIFY THE RULES BY WHICH COVERT
ACTIONS ARE. REVIEWED, APPROVED, AND REPORTED TO CONGRESS. IN
FACT, MANY. OF THE PROPOSALS CONTAINED IN H.R. 3822 ARE ALREADY
CONTAINED IN NSDD-286. THIS CAN BE ILLUSTRATED BY MAKING A FEW
COMPARISONS BETWEEN THE BILL AND THE PRESIDENTIAL DIRECTIVE.
--THE BILL REQUIRES THAT FINDINGS BE IN WRITING, CANNOT BE
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MADE RETROACTIVE, AND MUST BE CONSISTENT WITH EXISTING LAW.
SIMILAR REQUIREMENTS ARE CONTAINED IN THE NSDD.
--THE BILL MAKES CLEAR THAT A PRESIDENTIAL FINDING MUST BE
OBTAINED BEFORE ANY AGENCY OR DEPARTMENT CAN CONDUCT A COVERT
ACTION. THE PRESIDENTIAL DIRECTIVE AFFIRMS THIS PRINCIPLE.
--THE BILL REQUIRES THAT A PRESIDENTIAL FINDING SPECIFY THE
NAMES OF EACH DEPARTMENT OR AGENCY OF THE U.S. GOVERNMENT THAT
IS FUNDING OF, PARTICIPATING IN A SIGNIFICANT WAY IN A COVERT
ACTION, AND WHETHER IT IS CONTEMPLATED THAT ANY THIRD PARTY
WILL BE USED TO FUND OR OTHERWISE PARTICIPATE IN A SIGNIFICANT
WAY IN THE COVERT ACTION. AGAIN, THE PRESIDENTIAL DIRECTIVE
CONTAINS THE SAME REQUIREMENT.
IT IS NOT SURPRISING OR COINCIDENTAL THAT PROVISIONS OF THE
BILL ARE SIMILAR TO THE PRESIDENTIAL DIRECTIVE. THE PROCEDURES
THE PRESIDENT HAS INSTALLED WERE DEVELOPED FOLLOWING CLOSE AND
PROLONGED CONSULTATION WITH MEMBERS AND STAFFS OF THE INTELLIGENCE
COMMITTEES.
WHILE A PRESIDENTIAL DIRECTIVE IS NOT THE SAME AS LEGISLATION,
I AM NOT PERSUADED THAT NEW LEGISLATION AT THIS TIME IS THE BEST
WAY TO ADDRESS THE CONCERNS THAT MEMBERS HAVE WITH THE
CONGRESSIONAL ROLE REGARDING SPECIAL ACTIVITIES. IN MY VIEW, A
LEGISLATIVE REMEDY SHOULD BE EMPLOYED ONLY IF IT IS CLEAR THAT
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THERE IS A BASIC DEFICIENCY IN THE OVERSIGHT PROCESS. THAT IS
DOUBLY THE CASE WHEN THE LEGISLATIVE REMEDY PROPOSED RAISES
CONSTITUTIONAL ISSUES THAT THREATEN TO DIVIDE THE TWO BRANCHES IN
AN AREA WHERE EFFECTIVE WORK PLACES A PREMIUM ON COOPERATION.
THE IRAN/CONTRA MATTER, WHILE SERIOUS, HAS NOT IN MY VIEW
DEMONSTRATED THAT THE SYSTEM OF CONGRESSIONAL OVERSIGHT OF THE
INTELLIGENCE COMMUNITY ESTABLISHED UNDER CURRENT STATUTES IS
SERIOUSLY FLAWED. PIANY OF THE PROBLEMS EXPOSED WERE THE RESULT OF
OFFICIALS FAILING TO FOLLOW EXISTING PROCEDURES AND RULES. As YOU
MAY BE AWARE, I HAVE TAKEN STEPS WITHIN THE CIA TO DISCIPLINE
THOSE EMPLOYEES WHO FAILED TO FOLLOW CIA PROCEDURES OR WHO
TESTIFIED TO CONGRESS IN A MANNER THAT WAS NOT CANDID OR
COMPLETE. THOSE ACTIONS, TAKEN IN LIGHT OF THE REQUIREMENTS
DEFINED BY CURRENT STATUTE, IN MY VIEW HAVE ADEQUATELY ADDRESSED
THE PROBLEMS WE FOUND. SIMILARLY, TO THE EXTENT THAT THERE WERE
ANY PROCEDURAL SHORTCOMINGS DEMONSTRATED BY THE IRAN/CONTRA
MATTEk, THEY HAVE ALREADY BEEN ADDRESSED BY THE NEV,' PRESIDENTIAL
DIRECTIVE WITHIN THE PRESENT STATUTORY FRAMEWORK.
I WOULD LIKE TO EMPHASIZE THAT ANY LEGISLATION THAT IS ENACTED
SHOULD NOT ADVERSELY AFFECT THE INTELLIGENCE COMMUNITY'S ABILITY
TO DO ITS JOE. IN THIS CONNECTION, MR. CHAIRMAN, THE BILL PASSED
BY THE SENATE IN MARCH AND THE BILL MARKED UP EY THE HOUSE
INTELLIGENCE COMMITTEE HAVE ADDRESSED CONSTRUCTIVELY SOME OF THE
IMPORTANT SUBSTANTIVE CONCERNS I AND OTHER ADMINISTRATION
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OFFICIALS RAISED WITH THE ORIGINAL SENATE BILL INTRODUCED IN THAT
BODY. BOTH THE HOUSE AND SENATE BILLS, FOR EXAMPLE, RECOGNIZE THE
NEED TO REPORT ON SPECIAL ACTIVITIES AND INTELLIGENCE COLLECTION
IN A MANNER CONSISTENT WITH DUE REGARD FOR THE PROTECTION OF
SENSITIVE INTELLIGENCE SOURCES AND METHODS. I AM ALSO PLEASED
THAT NEITHER BILL REQUIRES THAT THE FINDING SPECIFY THE IDENTITY
CF FOREIGN COUNTRIES ASSISTING THE AGENCY IN THE CONDUCT OF COVERT
ACTION. THESE IMPORTANT SAFEGUARDS WILL IN MY VIEW, GO A LONG WAY
IN ASSURING FRIENDLY INTELLIGENCE SERVICES AND POTENTIAL AGENTS
THAT SOURCE-IDENTIFYING INFORMATION WILL NOT BE WIDELY
DISSEMINATED AND POSSIBLY COMPROMISED.
I AM ALSO VERY PLEASED WITH THE CHANGES IN THE CRGINAL HOUSE
VERSION OF THE BILL MADE BY THE HOUSE INTELLIGENCE COMMITTEE IN
RESPONSE TO CONCERNS I RAISED BEFORE THAT COMMITTEE. MY
RESERVATIONS REGARDED THE DEFINITION OF COVERT ACTION, THE
EXPENDITURE OF NON-APPROPRIATED FUNDS AND THE REPORTING OF THE
TRANSFER OF DEFENSE ARTICLES OR SERVICES. IN PARTICULAR, THE NEW
DEFINITION OF COVERT ACTION REMOVES MUCH OF THE AMBIGUITY OVER
WHAT CONSTITUTES A COVERT ACTION AND IS IN MY VIEW A DISTINCT
IMPROVEMENT OVER THE CURRENT DEFINITIONS.
I
PRIOR NOTICE OF SPECIAL ACTIVITIES
WHILE THE INTELLIGENCE COMMITTEES HAVE ADDRESSED SEVERAL
CONCERNS PREVIOUSLY RAISED IN MY TESTIMONY BEFORE THOSE
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COMMITTEES, THERE IS ONE AREA OF THE BILL THAT REMAINS
PARTICULARLY TROUBLESOME. THIS AREA OF DIFFICULTY INVOLVES THE
PROVISION OF THE BILL THAT REQUIRES NOTIFICATION OF A COVERT
ACTION TO CONGRESS, WITHOUT EXCEPTION, WITHIN 48 HOURS AFTER THE
SIGNING OF A FINDING. LAST SUMMER, THE DEPARTMENT OF JUSTICE
PROVIDED THE CONGRESS WITH ITS VIEWS ON THE CONSTITUTIONALITY OF
SUCH A PROVISION, SO I WILL NOT ADDRESS THAT ISSUE HERE. I HAVE
TWO SEPARATE CONCERNS ABOUT THIS PROVISION.
FIRST, THE FACT THAT THERE IS A SHARP DIFFERENCE OF
INTERPRETATION BETWEEN THE VIEW OF THE ADMINISTRATION AND THE
POSITION EMBODIED IN THIS BILL REGARDING THIS PROVISION'S
CONSTITUTIONAL VALIDITY WILL PROMOTE TENSION BETWEEN THE EXECUTIVE
AND LEGISLATIVE BRANCHES FOR YEARS TO COME. IN THE INTELLIGENCE
AREA SUCH TENSION HAS THE POTENTIAL TO DISRUPT THE COOPERATION AND
TRUST THAT EFFECTIVE NATIONAL SECURITY POLICY REQUIRES.
SECOND, I BELIEVE THAT AS A PRACTICABLE MATTER ALLOWANCE MUST
BE MADE FOR THAT RARE CASE WHERE A LIMITED DELAY IN CONGRESSIONAL
NOTIFICATION IS CRITICAL TO PRESERVE THE ABSOLUTE SECURITY OF AN
OPERATION WHEN, FOR EXAMPLE, LIVES ARE AT STAKE. IN SUCH A RARE
CASE, THE SUCCESS OF AN OPERATION MAY DEPEND ON THE COOPERATION OF
A FOREIGN GOVERNMENT THAT HAS CONDITIONED ITS SUPPORT ON THE
PRESIDENT DELAYING CONGRESSIONAL NOTIFICATION UNTIL THE OPERATION
IS COMPLETED. AN INFLEXIBLE NOTIFICATION REQUIREMENT COULD FORCE
A PRESIDENT TO CHOOSE BETWEEN PROVIDING THE CONGRESSIONALLY
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REQUIRED NOTIFICATION WITHIN 48 HOURS AND JEOPARDIZING THE LIVES
OF INNOCENT AMERICANS, OR DELAYING THAT NOTIFICATION TO PROTECT
THOSE LIVES. I CAN UNDERSTAND WHY ANY PRESIDENT WOULD BE
RELUCTANT TO AGREE TO A LAW THAT WOULD REQUIRE SUCH CHOICES.
IT IS WORTHWHILE TO NOTE THAT CONCERNS ABOUT EXCESSIVE DELAY
IN CONGRESSIONAL NOTIFICATION OF A SPECIAL ACTIVITY HAVE ALREADY
BEEN ADDRESSED BY NSDD 286. THAT DIRECTIVE REQUIRES THE NATIONAL
SECURITY PLANNING GROUP TO REEVALUATE AT LEAST EVERY 10 DAYS A
DECISION TO DELAY CONGRESSIONAL NOTIFICATION OF A GIVEN FINDING.
THIS WILL ENSURE THAT WHEN A DELAY IN NOTIFICATION IS NECESSARY,
THE REASON FOR THAT DECISION WILL BE CONTINUALLY REASSESSED BY
RESPONSIBLE SENIOR OFFICERS OF SEVERAL AGENCIES OR DEPARTMENTS SO
THAT THE DELAY WILL BE AS SHORT AS POSSIBLE. I REPEAT, HOWEVER,
THAT I CAN THINK OF FEW CIRCUMSTANCES THAT WOULD EVER NECESSITATE
SUCH EXTRAORDINARY STEPS.
IF THE COMMITTEE SHOULD NEVERTHELESS DECIDE THAT LEGISLATION
IS NECESSARY TO LIMIT THE PRESIDENT'S AUTHORITY TO DELAY
NCTIFICATION, I WOULD URGE MEMBERS TO GIVE SERIOUS CONSIDERATION
TO LANGUAGE CONTAINED IN A BILL PROPOSED BY RANKING MINORITY
MEMBER BROOMFIELD THAT WOULD ALLOW THE PRESIDENT TO DELAY
NOTIFICATION IF HE DETERMINES THAT AN EMERGENCY CONSTITUTING A
GRAVE AND IMMEDIATE THREAT TO THE NATIONAL SECURITY OF THE UNITED
STATES EXISTS. WHILE SUCH A STANDARD MAY NOT COVER ALL SITUATIONS
WHERE LIVES ARE AT STAKE, IT WOULD ALLOW THE PRESIDENT THE
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FLEXIBILITY TO DELAY NOTIFICATION IN CIRCUMSTANCES WHERE THE
GOVERNMENT FACES A GRAVE AND IMMEDIATE. THREAT TO ITS SECURITY.
ACCESS BY FOREIGN AFFAIRS COFih1ITTEE TO INTELLIGENCE INFORMiATIO1
ALTHOUGH NOT DIRECTLY RELEVANT TO THE LEGISLATION BEFORE THIS
COMMITTEE, I THOUGHT THIS WOULD BE AN APPROPRIATE TIME TO ADDRESS
A CONCERN I UNDERSTAND SOME MEMBERS HAVE WITH RESPECT TO ACCESS BY
THE FOREIGN AFFAIRS COMMITTEE TO INTELLIGENCE INFORMATION. IN MY
VIEW, THE FOREIGN AFFAIRS COMMITTEE DOES HAVE A LEGITIMATE NEED
FOR INFORMATION ABOUT DEVELOPMENTS AROUND THE WORLD. SOME OF
THIS INFORMATION IS CLASSIFIED. OUR BEST INTELLIGENCE ANALYSIS
ABOUT THE SIGNIFICANCE AND IMPLICATIONS OF SUCH DEVELOPMENTS CAN
PLAY AN IMPORTANT PART IN THE COMMITTEE DOING ITS WORK PROPERLY.
I BELIEVE THE RECORD WILL SHOW THAT THE CENTRAL INTELLIGENCE
ACENCY HAS, IN FACT, BEEN RESPONSIVE TO THE REQUEST OF THE
COMMITTEE FOR SUCH INFORMATION.. SOME RECENT STATISTICS HELP TO
ILLUSTRATE THIS POINT. LURING THE PERIOD FROM 1986 TO THE
PRESENT, THERE. HAVE BEEN 48 STAFF BRIEFINGS, 68 MEMBER BRIEFINGS,
AND 14 APPEARANCES BEFORE THE COMMITTEE INVOLVING FORMAL
TESTIMONY. TO THE CONGRESS AS A WHOLE, CIA NOW PROVIDES MORE THAN
1,000 BRIEFINGS PER YEAR. LISTENING TO THESE BRIEFINGS TAKES A
GREAT DEAL OF VALUABLE TIME ON YOUR PART, SO I GATHER YOU FIND
THEM USEFUL.
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THE SUBSTANCE OF THE INFORMATION CONVEYED BY THE AGENCY TO THE
CONGRESS HAS RANGED FROM PRETRIP BRIEFINGS ON PARTICULAR COUNTRIES
FOR MEMBERS TO FORMAL TESTIMONY ON THE DISASTER AT CHERNOBYL OR
TERRORISM IN GENERAL. IN ADDITION, THE COMMITTEE HAS ACCESS TO
THE NATIONAL INTELLIGENCE DAILY, OUR NATIONAL INTELLIGENCE
ESTIMATES AND A VARIETY OF OTHER INTELLIGENCE PUBLICATIONS.
I WOULD URGE MEMBERS OF THIS COMMITTEE WHO ARE INTERESTED IN
OBTAINING MORE INTELLIGENCE INFORMATION TO TAKE ADVANTAGE OF THE
ACCESS OF THE COMMITTEE TO THIS WEALTH OF INFORMATION.
WHILE I BELIEVE WE HAVE BEEN RESPONSIVE TO THE COMMITTEE' S
REQUEST FOR INTELLIGENCE INFORMATION, I HOPE THAT YOU WILL
UNDERSTAND MY NEED TO PROTECT FROM DISCLOSURE OPERATIONAL
INTELLIGENCE INFORMATION THAT MIGHT JEOPARDIZE OUR SOURCES AND
METHODS FOR GATHERING THIS INFORMATION. WHEN THIS INFORMATION IS
COMPROMISED, NOT ONLY IS THE PARTICULAR SOURCE OF INTELLIGENCE
LOST TO THE U.S. GOVERNMENT, BUT OTHERS BECOME RELUCTANT TO
COOPERATE FOR FEAR THEIR IDENTITIES WILL ALSO BE DISCLOSED. IN
SOME CASES IT MAY BE ADVISABLE TO DISCLOSE SENSITIVE OPERATIONAL
INFORMATION IN ORDER FOR CONGRESS TO CONDUCT EFFECTIVE OVERSIGHT.
A DECISION WAS MADE BY CONGRESS ITSELF IN 1980 TO LIMIT THIS TYPE
OF INFORMATION TO THE INTELLIGENCE COMMITTEES. THIS DECISION WAS
A WISE ONE, AND I WOULD STRONGLY OPPOSE ANY PROPOSAL 'TO EXPAND THE
NUMBER OF CONGRESSIONAL COMMITTEES DIRECTLY INVOLVED IN
INTELLIGENCE OVERSIGHT.
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ACCESS TO COVERT ACTION INFORMATION
IN ADDITION TO THE QUESTION OF ACCESS TO INTELLIGENCE
INFORMATION IN GENERAL, I UNDERSTAND SOME MEMBERS ARE CONCERNED
THAT THE THE FOREIGN AFFAIRS COMMITTEE IS NOT BEING BRIEFED ON
COVERT ACTIONS THAT HAVE SIGNIFICANT FOREIGN POLICY IMPLICATIONS.
UNDER EXISTING LAW AND THE INTELLIGENCE OVERSIGHT BILL BEING
CONSIDERED BY THIS COMMITTEE, ACCESS TO COVERT ACTION INFORMATION
IS CONFINED TO THE INTELLIGENCE OVERSIGHT COMMITTEES AND THE
DEFENSE SUBCOMMITTEES OF THE APPROPRIATIONS COMMITTEES. I DO NOT
BELIEVE IT IS NECESSARY OR WISE TO EXPAND THE NUMBER OF COMMITTEES
TO WHICH WE MUST REPORT COVERT ACTIONS. TO DO SO WOULD SIMPLY
RETURN US TO THE SITUATION EXISTING BEFORE THE INTELLIGENCE
OVERSIGHT ACT OF 1980 WHEN WE HAD TO PROVIDE COVERT ACTION
INFORMATION TO EIGHT COMMITTEES OF CONGRESS. THIS SITUATION MADE
IT ALMOST IMPOSSIBLE TO CONDUCT COVERT ACTION COVERTLY.
I BELIEVE THAT THE CONCERN EXPRESSED BY SOME REGARDING THE
LACK OF COMMITTEE ACCESS TO COVERT ACTION INFORMATION MAY BE THE
RESULT OF A MISPERCEPTION AS TO HOW COVERT ACTION RELATES TO OUR
FOREIGN POLICY. COVERT ACTION IS IMPLEMENTATION BY CLANDESTINE
MEANS OF THE FOREIGN POLICY OF THE UNITED STATES GOVERNMENT. OUR
FOREIGN POLICY IS FORMULATED BY THE PRESIDENT AND THE SECRETARY OF
STATE.
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THE DIRECTOR OF CENTRAL INTELLIGENCE SHOULD NOT MAKE FOREIGN
POLICY OR USE COVERT ACTION AS A VEHICLE FOR CREATING A SECRET
FOREIGN POLICY. BECAUSE THE SECRETARY OF STATE IS OBLIGATED TO
KEEP THE FOREIGN AFFAIRS COMMITTEE INFORMED OF OUR FOREIGN POLICY,
I BELIEVE THAT THE COMMITTEE DOES HAVE THE NECESSARY MEANS TO MAKE
ITS VIEWS KNOWN REGARDING FOREIGN POLICY, INCLUDING THOSE SPECIFIC
POLICIES BEING IMPLEMENTED BY A COVERT ACTION.
IF YOU BELIEVE THAT THE. ARRANGEMENT I HAVE DESCRIBED IS NOT
ADEQUATE TO ENSURE THAT THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE
ARE REPRESENTED IN THE OVERSIGHT OF COVERT ACTION, I WOULD SUGGEST
CONGRESS CONSIDER GREATER USE OF CROSS-OVER MEMBERSHIP BETWEEN THE
FOREIGN AFFAIRS COMMITTEE AND THE HOUSE INTELLIGENCE COMMITTEE.
SUCH CROSS-OVER MEMBERS ARE IN THE BEST POSSIBLE POSITION TO
EXPRESS THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE IN DELIBERATIONS
CONDUCTED BY THE HOUSE INTELLIGENCE COMMITTEE. SOME OF YOU NOW
SERVE OR HAVE IN THE PAST SERVED VERY EFFECTIVELY IN THIS WAY.
IN CLOSING, I WOULD LIKE TO REEMPHASIZE TO EACH OF YOU MY
PERSONAL COMMITMENT TO MAKING THE OVERSIGHT PROCESS WORK. IT HAS
ALWAYS BEEN CLEAR, AND RECENT EXPERIENCE HAS AGAIN DEMONSTRATED,
THAT THE IMPLEMENTATION OF THE FOREIGN POLICY OF OUR GOVERNMENT,
INCLUDING COVERT ACTION, CAN ONLY BE SUCCESSFUL WHEN THE EXECUTIVE
AND LEGISLATIVE ERANCHES OF GOVERNMENT WORK TOGETHER IN AN
ATMOSPHERE OF MUTUAL RESPECT AND TRUST. THIS SPIRIT OF
COOPERATION CAN ONLY OCCUR IF THE CONGRESS RECEIVES THE
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APPROPRIATE INFORMATION NEEDED TO REVIEW AND MAKE INFORMED
JUDGMENTS ON COVERT ACTION, WHILE AT THE SAME TIME ENSURING THAT
THIS INFORMATION IS PROTECTED FROM UNAUTHORIZED DISCLOSURE. THE
LAW SHOULD REFLECT NOT ONLY THE NEED FOR COOPERATION, BUT ALSO THE
PRESIDENT'S RESPONSIBILITY FOR THE CONDUCT AND MANAGEMENT OF OUR
INTELLIGENCE AND THE IMPORTANCE TO THE NATION OF ENSURING THAT THE
PRESIDENT HAS THE NECESSARY FLEXIBILITY AND AUTHORITY TO EMPLOY
OUR INTELLIGENCE CAPABILITY EFFECTIVELY.
As I HAVE NOTED, THE PRESIDENT HAS TAKEN CORRECTIVE STEPS TO
IMPROVE ThE OVERSIGHT SYSTEM THROUGH A PRESIDENTIAL DIRECTIVE. AT
CIA, I HAVE APPROVED A NUMBER OF MEASURES THAT WILL PREVENT A
REPETITION OF THE SHORTCOMINGS IN THE AGENCY'S PERFORMANCE IN THE
IRAN/CONTRA MATTER. IN SHORT, SIGNIFICANT CHANGES HAVE BEEN
MADE. I WOULD RESPECTFULLY SUBMIT THAT THEY SHOULD BE GIVEN A
CHANCE TO WORK. INDEED, THEY ARE WORKING. I AM CONVINCED THAT
THE CURRENT FRAMEWORK, AND NOT NEW LAWS, REPRESENTS THE MOST
APPROPRIATE AND EFFECTIVE MEANS TO ACHIEVE OUR SHARED COMMITMENT
TO HAVE CONGRESS PLAY AN ACTIVE, EFFECTIVE ROLE IN THE OVERSIGHT
OF UNITED STATES INTELLIGENCE ACTIVITIES.
THIS CONCLUDES MY STATEMENT. I AM PREPARED TO ANSWER YOUR
QUESTIONS.
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UNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON FOREIGN AFFAIRS
June 14, 1988
STATEMENT OF THE HONORABLE CLARK M. CLIFFORD
Chairman Fascell and members of the Committee:
I am pleased to appear before you today to offer my views
on the subject of covert activities, and in particular the
legislation under your consideration for improving the process
whereby these activities are
made known to the Congress.
significance to our nation's
government. It is also, as
of serious potential abuse.
efforts are both timely and
approved by the President and
This is a subject of great
foreign policy and.our system of
we have recently seen, a subject
Therefore, the Committee's
vital.
As the Committee knows, covert activities have become
numerous and widespread, practically constituting a routine
component of our foreign policy. And with these activities
have come repeated instances of embarrassing failure -- where
the goals of the operations themselves were not fulfilled and
unforeseen setbacks occurred instead. I believe that on
balance covert activities have harmed this country more than
they have helped us. Certainly, efforts to control these
activities, to keep them within their intended scope and
purpose, have failed.
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We have reached the point now where we must reassess the
very idea of conducting covert activities. If we are to
continue with them and gain any benefit from them, we must
find a way to keep them consistent with the principles and
institutions of the Constitution and our foreign policy. If
we determine that this cannot be done, then I say we are
better off without covert activities entirely than with them
out of control.
On this score, we must keep in mind what is meant by
covert activities. These are only part, a very small part --
perhaps 2 or 3 percent -- of the intelligence activities of
our government. Covert activities, in my definition, are
active efforts to alter political conditions in foreign
countries through financial, paramilitary, and other means.
That the government should want to disavow responsibility for
such activities is understandable.
Over the last year or so, the cost that covert activities
can inflict on our system of government also has been clear.
Whatever the specific actions or individual responsibility,
the sale of arms to Iran and the diversion of profits from
those sales to the contras in Nicaragua caused severe damage
to our government and the institution of the Presidency. The
President's credibility suffered drastically and with it the
integrity of the nation's foreign policy.
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One of the principal shortcomings of the Iran-contra
affair was the failure of the President to notify the
intelligence committees of the government's activities. The
oversight process could have served a significant,-salutary
purpose: giving the President the benefit of the wisdom of
those who are not beholden to him, but beholden like him
directly to the people, and prepared to speak frankly to him
based on their wide, varied experience. Had the President
taken advantage of notifying Congress, he and the country
might well have avoided tremendous embarrassment and loss of
credibility.
The Iran-contra affair presents this Committee and the
country with a crucial question: should the laws governing
covert activities be changed?
To answer this question, we first might examine the
attitude of President Reagan. In his letter to the Senate
Intelligence Committee of August 7, 1987, the President said
that the current laws are adequate and that any changes could
occur by executive order. I strongly disagree.
In the Iran-contra affair, the President displayed an
attitude that is antithetical to the oversight process. You
will recall that the President signed a finding that expli-
citly instructed the Director of the CIA not to notify the
Congress of the activity. For ten months, the Director and
others involved abided by this instruction. In fact, the
President finally notified the Congress only after the
activity had become public knowledge. Much later, after the
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Congress had begun its inquiry, the President in his letter to
the Committee supported the concept of notification but
insisted on two exceptions. These exceptions would relieve
the President of the notification requirement in "cases of
extreme emergency" and "exceptional circumstances." I suggest
to this Committee that to permit these two exceptions would
make the notification requirement meaningless.
Further evidence of the Administration's attitude is the
Justice Department's December 1986 memorandum supporting the
President's position in delaying notification for ten months.
The memorandum offered the novel theory that the President may
determine what is timely notice based on the sensitivity of
the covert activity. According to this theory, the President
would never have to inform Congress of a particularly sensitive
activity.
Moreover, we find that this continues to be the legal
theory of the Justice Department. In testimony before the
Senate Intelligence Committee in December 1987, a Department
representative made the following statement:
There may be instances where the President must
be able to initiate, direct, and control extreme-
ly sensitive national security activities. We
believe this presidential authority is protected
by the Constitution, and that by purporting to
oblige the President under any and all circum-
stances, to notify Congress of a covert action
within a fixed period of time, S. 1721 infringes
on this constitutional prerogative of the
President.
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In other words, it is the attitude of the Administration
that, whatever laws exist, the President may interpret them as
he chooses. This is not the way that I understand our
Constitution is supposed to work. So, my answer to the
question confronting us today is that the laws governing the
oversight process must be changed. And the changes must be
specific, direct, and as clear as possible.
I wish to lend my full
support to H.R. 3822, the
legislation that the Committee is considering today. Late
last year, I,testified before the Senate Intelligence
Committee and supported S. 1721, the companion bill to H.R.
3822, and earlier this year, I testified before the House
Intelligence Committee concerning H.R. 3822. I understand
that all of the committees have worked together on these
bills, and I commend your cooperation, as well as its result.
The legislation that you have crafted meets the need for
change that exists in the important area of notification to
the Congress.
H.R. 3822 would require the President to sign a written
finding, setting forth the particulars of a covert activity,
normally when approving it but in no event more than forty-
eight hours afterwards. The legislation would require the
President to provide the intelligence committees with the
signed finding normally before the activity begins but in no
event more than forty-eight hours after it is approved. The
President could limit notification to the so-called Group of
Eight, but he would have to explain why he was doing so.
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Findings that purported to validate past activities or
authorize illegal measures would violate the law.
I view these provisions as welcome and worthwhile
improvements in the oversight process. And the Senate's
approval of the legislation and the House intelligence
committee's favorable report of it are positive steps that I
encourage this committee to follow.
I would note that I recommended to the intelligence
committees in my earlier testimony that the legislation be
strengthened by including criminal sanctions for failure to
notify Congress within the required period. Specifically, I
proposed that a provision be added to H.R. 3822 prohibiting
the continued expenditure of funds for any covert activity
where proper notice was not given, and penalizing any
government employee who knowingly and willfully violated or
conspired to violate this prohibition. While the intelligence
committees did not adopt this proposal, it should remain an
important consideration for the future.
Finally, there are two questions concerning H.R. 3822
that arose during my previous testimony before the House and
Senate committees and that you also may wish answered.
First, is H.R. 3822, particularly the specific-notice
requirement, consistent with the Constitution? I have studied
this question extensively. I am convinced of the constitution-
ality of requiring the President to provide notice of covert
activities within forty-eight hours of approving them. There
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is no basis in the Constitution for the Administration's claim
of plenary Presidential power.in foreign affairs; rather,
Congress and the President share concurrent authority in this
area according to the Constitutional system of checks and
balances. It is entirely consistent with Congress' legislative
and other, enumerated powers to establish reasonable procedural
regulation of covert. activities.
On this score, it bears emphasizing that the specific-
notice requirement in H.R. 38.22 is strictly procedural, not
substantive. It does not dictate or limit what covert activity
the President may approve or how or when the activity may
occur. It simply says that the President must provide notice
within a time certain. As the Committee knows, the oversight
process does not give Congress a veto, but only a voice.
Notice is an obvious and essential component of
oversight, and it is the least of what Congress may require in
fulfilling its oversight function. After all, it was by act
of Congress -- the National Security Act of 1947 -- that the
CIA was established and.exists today; and it was by this same
act of Congress that covert activities were authorized and
continue to occur. H.R. 3822 represents a refinement of
Congress' previous reasonable procedural regulation of covert
activity.
Second, is this the appropriate time to-enact this
legislation? Absolutely. Indeed, I believe that the
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legislation is long overdue. We have gone through the agony
of covert activity gone awry all too often. Change is
essential.
I can recall some thirteen years ago testifying before
the Select Committee to Study Governmental Operations -- the
Church Committee -- regarding the gross abuses in covert
activities that were the concern of that committee. In my
testimony in 1975, I said:
The'lack of proper controls has resulted in a
freewheeling course of conduct on the part of
persons within the intelligence community that
has led to spectacular failures and much
unfortunate publicity. A new approach is
obviously needed, for it is unthinkable that we
can continue to commit the egregious errors that
have caused such consternation to our friends
and such delight to our enemies.
The Church Committee helped enact the 1980 Intelligence
Oversight Act, and this certainly was a step forward. But
today we know that it was not enough. Sadly, my words from
1975 are all too pertinent.
Now, the nation has endured yet another devastating blow
to our stature and effectiveness. The Iran-contra affair
demonstrated convincingly that the flexible requirement of the
1980 Act -- that Congress be notified of covert activity in a
"timely fashion" -- is too easily eluded by expedience. The
law must be made explicit and firm so that the oversight
process functions and the nation benefits.
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In my view, there is no excuse for failure to notify the
Congress according to the law, and there should be no
exception to compliance with such law. The purpose of this
legislation is not to assume good faith but to ensure good
government.
For many years the United States has offered leadership
to the world because of our character as a nation and our
devotion to freedom and the liberty of man.
We have great economic power.
We have unparalleled military. power. But our standing in
the world community rests mainly upon the confidence and trust
that other nations have in?us.
We do not hold the free world together at gunpoint.
It is mutual trust that binds us. And the vital element
of that trust is our credibility.
Unfortunately, our credibility has been grieviously
damaged this past year in many parts of the world.
It is incumbent upon all who are in positions of
.authority to take the necessary steps toward restoring our
former position. This legislation is a splendid move in this
direction, and will be of vital importance in reducing the
possibility of another similar disaster.
Thank you.
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