HENRY HYDE'S SPEECH ON LEAKS AND CONGRESSIONAL OVERSIGHT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00390R000200190012-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 27, 2016
• Document Release Date: August 28, 2013
• Sequence Number: 12
• Publication Date: March 31, 1988
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2013/08/28: CIA-RDP91B00390R000200190012-5 ?
=me R
U.S. HOUSE OF REPRESENTATIVES
PERMANENT SELECT
COMMITTEE ON INTELLIGENCE
WASHINGTON. D.C. 20515
For your information.
Tom Smeeton
88-1600X
1 OREGI3TRy
2 0 APR 1988
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Declassified and Approved For Release 2013/08/28: CIA-RDP91B00390R000200190012-5
.11arc,;: J. :388 CONGRESSIONAL RECORD ? Extenszons o, Ronar:CS
HENRY HYDE'S SPEECH ON
LEAKS AND CONGRESSIONAL
OVERSIGHT
HON. ROBERT H. MICHEL
:r IL.IOIS
IN THE HOUSE OF REPRESENrATIVIES
Thursdav, March 11, 1988
Mr. MIChEL Mr. Soeatter. on Weenesaav.
Marcn 30. 1988. rrtv aistinguisnea Illinois cot-
'eague ana our good fnend HENRY ievaE. de-
;mere? a soeecn Oetore a comerence cospon-
sorea ov me Amencan ear Association Stand-
ing Committee on Law and National Seeunty.
the George Mason University School of Law.
the Stucent ear AsSOciatem, and the Interna-
tional Law Society. I want to insert Mr. HYPE'S
remares in *me RECORD at this point because
believe wnat he has to say =out " 'Leaks'
and Cangressional Cversignt" reflects his
usual gooa luagment. eommon sense. and un-
common wisaom.
"LEAKS- AND CONGRESSIONAL OVERSICET
(By Henry J. Hyde) casions when foreign govermeras had said
they would not share Information if CIA
The grave effects of unauthorized disci?. provided it to Congress.3
sures upon U.S. intelligence and our foreign
whether to trade information with U.S. in-
telligence. what quaiity of information they
will provide and whether they will actively
cooperate with us in other ways. In testify-
ing against proposals for mandatory and
more detailed prior notifications to Congres-
sional Intelligence Committees. Secretary of
Defense Frank Carlucci. who formerly was a
Deputy Director of Central Intelligence
under President Carter and more recently
served as President Reagan's National Secu-
rity Adviser, stated that foreign govern-
ments cooperating on special activities are
wary because they don't trust Congress to
keep secrets:,
?It is a matter of perceptions.' said Mr.
Carlucci. 'Other Governments are extraordi-
narily sensitive on this point ? ? ?.'"
-If our intelligence assets around the
world. particularly cooperating organ L7-1-
tions. perceive that the CIA is obliged to dis-
gorge whatever the (Intelligence Commit-
teesl may want, then it is very clear based
on my experience that our intelligence
assets would dry up."
Carlucci said he knew of "numerous" oc-
Congressmen by nature have strong politi-
cal views, cater to and depend on the press.
thinking aoout with some urgency.
The seriousness and universality of and are not imbued with the security habits
'leaks' are oovious. Yet many continue to
of intelligence professionals. Thus, they flat-
maintain there s no "proof" that Congressurally fall under suspicion. And let's not
forget that congressional oversight In the
leeks or that it leaks significantly. And.
even wnen acknowledging problems in the aftermath of Vietnam and Watergate
executive brancn or Congress. powerful leg- strained relations between Congress and the
islative figures habitually object to virtually intelligence community almost to the break.
every uutiative for investigating and punish- Mg point. Ex-CIA Director Colby recalls in
ing these occurrences. while failing to offer his memoirs that every new covert action
alternative solutions My proposal for a disclosed to Congress in 1975 was leaked.
Joint Lntelligence Committee. which would "And the 'covert' part of CLA's covert action
replace the existing two House and Senate seemed almost gone." The notorious laxity
committees and reduce the number of Seem- of the Church and Pike investigations taint.
bees and staff with access to intelligence ua- ed the more rigorous Intelligence Commit.
formation. has been resisted since 1984 tees which took their place.
when I first introduced the idea. Other sue- Senate study at face value. however. and
No less a journalistic authority on leaks
gestions. e.g, increasing use of the poly-than Daniel Schorr noted i al-so generously assume that Congress nas
a Washington
out the early history of problems
authorized disclosures in Congress
more recent examples of alleged
E 961
with un-
and gave
concres-
sional leaks published in other sources. in-
cluding use of the tnreat of disclosure by
several individuals in order to block execu-
tive branch actions of which they disap-
proved. That the majority report didn't con-
sider leaes a funaamental issue is in itself a
mai measure of the problem.
From the outset. of the congressional Iran.
Contra probe, there was a steady stream of
leaks. Interestingly. House Chairman Lee
Hamilton and his Senate counterpart.
Daniel Inouye. followed their best instincts
on how to keep secrets when it came time to
depose admiral Pomdexter. As the minority
report observes:
"The two Select Committees recognized
that the Admiral's testimony on the diver-
sion of funds was the pivotal, and potential-
ly most explosive political question of this
whole investigation. As a result. extraordi-
nary steps were taken to protect the infor-
mation. Specifically. only three staff attor-
neys and no members of either committee
participated In the secret questioning. The
success of these procedures speaks volumes
on how to protect secrets." ?
Officially "proven" sourcing of leaks on
the Hill or elsewhere, however. is extremeiy
rare. Only a handful of leaks ever have been
traced through investigation to the culpable
individual, so lack of proof hardly estab-
lishes that Congress has a good record. ?
A Senate intelligence committee study re-
leased to the press reportedly found that in
selected leaks of classified information.
journalists referenced congressional sources
only 8-9% of the tune, but cited Reagan ad-
ministration officials 68% of the time. This
research methodology is suspect. since Jour-
nalists are alleged frequently to protect
their most vulnerable sources, and persons
on the Intelligence oversight committees
would in many cases be particularly exposed
by virtue of being the only knowledgeaote
"congressional" sources. Let us take tne
graph for investigative purposes. strength- Post article ? "' ? it's hnever b
ening mei noncusciosure agreements and
legal action against disclosers or the media. suggested that a Member of Congress could
be disciplined other than by Congress
are branded as paranoia and violations of
This is relevant because a don't think that I
first amendment rights. But the critics
am baring any great Journalistic secrets) the
never offer a better solution. and most seem
exposure of covert Intelligence questions
content to drift with the trde?or more ac-
frequently a form of congressional whistle.
is
IL
the tidal wave.
blowing. A leak often occurs when a clandes-
Lf. the Iran/ Contra affair had one salutary
effect, it was to highlight pollernakerg fear time plan runs into substantial opposition
of leaks and distrust of congressional discre- during a briefing for congressional commit-
tion, and to expose dramatically the de- tees." Schorr went on to cite a number of
structive effects this can have. Maximum specific examples involving reported con.
aompasementalittasion within the executive. gressional leaks of information on Angola,
branch and failure to notify Congress of the Chile. Nicaragua. El Salvador. and Libya.
Iran mutative invited Judgmental errors and Recently, there have been several knovrn
courted political disaster- Thaw MAP& were and serious disclosures on each of the Over-
taken out of determination to explore a sight Committees. Those who nonetheless
policy option considered potentially promis. continue categorically to defend the com-
ing only if. by avoiding normal procedures. ?mum,. records apparently depend upon
It could be kept secret. An unanswered OUP- congress ional courtesy to forestall a "name
tion is how many times the opposite 10-names"hap-rebuttal. In the congressional Select
pens?how many times are iruurrative Committees final report on the Iran-Contra
preaches to difficult foreign policy Problems
affair, the minority report devoted a chap-
rejected or not even considered because
ter to the need to patch leaks.' It pointed
their success depends upon a secrecy which
probably could not be maintained?
Regardless of claims that Congress must BIB Gertz. -Carlucci: Cohen 13111 Wal Plug CIA
be considered innocent until proven guilty Sources." Washington Times, Dec. 11. 1987.
of security Lames, damage to the oversight Bob Woodward and Walter Plneua **Carlucci
Process occurred as soon as a widespread Warns of Veto on covgn.Agtion
Notwe." Washing.
perception developed that the legislative ton Post. Dec. 17. 1987.
branch could not be trusted. This percep- William Colby. -Honorable Men" (1979). D. 423,
Daniel Schorr. "Cloak and Dosser Relics."
tion has seriously affected executive branch
Wsshutston Post. Nov. 14.1985.m.3.
cooperation with intelligence oversight coin-
? -Regan of the Congressional Committees hives.
mittees. A similar attitude is harbored by
IramContra Affair" (Washington. DC:
allied intelligence services who decide tiratulg 1"
GPO. 1987). pp. 575-79.
2.500 people with clearances as opposed to
2.2 million in the executive branch and rsili-
(arr. Reliance on the Senate study force's us
to conclude that Congress maintains :ust
over 0.1% the number of executive Grancn
clearances, but is responsible for 8-9?".? of
the leaks on national security issues. Ebecil?
ically, on average, a cleared person in Con-
gress is 60 times more likely than his coun-
terparts elsewhere to engage in unautnor?
tzed disclosures.
Evidence that news leaks quite commonly
originate on the Hill also was developed in a
summer 1987 survey among the reseersrup
of the periodical. American Politics. The
Journal. circulated almost entirely a ithin
the Washington area, asked its readership
to respond to ? wide-ranging poll which in-
cluded the question. "Have you ever leased
information to the news media?" over soo
persons, considered to be a reliable cross-
section of the readership, responaect.
sults on the leak question were considered
so dramatic that they were published early
and separately, in an August 1987 article en-
titled "Leak City,"' More than one in tour
' Ibid. p 579.
Results on the leak portion are ouolisneo Ui
Robert Garcia. -Leak City.- American 1?Nditica
August tottl. pp. 23-24. Metnoaoiogy is ? a voyaned
and some additions* pertinent information . given
in Ropers Garcia. "And Other Results oi tn? pinsi
Annual 'Inside tne Beltway' Reapers Poll Amen.
can Poiluca. Sept, 1997. pp. 14-11. Resoonnenui on
inc leak section included, intr. oho. 16 tanincians.
193 Capitol Hill staffers. six memoers ot its. Diplo-
matic Corps anti 66 Federal empioN ees
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E 962 CONGRESSIONAL RECORD ? Extensions of Reinarin
persons?over 28%?conceded at some time
having shared a secret with the media. Cap-
itol Hill staffers. sporting a 31% rating. were
higher than average. But they were pikers
compared to the "politician" category, alone
at the pinnacle of the chart. in which 62%
of 16 responoents admitted to having leaked
information. This contrasted with 23% in
the "Federal employees" category. Media in-
formation sources tended to have higher
salary and educational levels. Contrary to
some recent accusations. conservatives were
found to leak less than liberals and moder-
ates. And, in delicious irony, leakers named
journalists as the group they trusted the
least. (Among respondents as a whole. "poli-
ticians" had a slight edge over journalists in
competition for this award.)
The situation ha-s been allowed to deterio-
rate 30 far that the task of changing this
Permissive culture is now monumental. Suc-
cess will come very slowly indeed. and will
result only from a persistent and aggressive
attack across a broad front. in both Con-
gress and the executive branch.
One option is stricter security procedures
and increased compartmentalization. Cap-
itol Hill is very quick to claim this is the
preferred solution for the executive branch
Problems. thereby avoiding the need to
grapple with difficult civil and press liber-
ties issues. But Congress is loathe to apply
this option to its own operations by consoli-
dating its oversight into one joint commit-
tee. However, consolidation and compart-
mentalization is a far more promising
option for the congressional Intelligence
Committees than for policy agencies. Effec-
tive congressional oversight doesn't require
Intelligence Committees with 32 (plus 4 ex-
Officio) members and 55-plus staff. More-
over, additional stall, as well as 31 Senators
and Congressmen serving on the Defense
Appropriations Subcommittees in both
Houses of Congress, also have access to ex-
tremely sensitive Intelligence. Altogether.
therefore. 67 Members of Congress are in
the "loop" for such information.
For the policy agencies, who already have
cut back on access to classified material, fur-
ther restrictions on the dissemination of in-
formation may be helpful in some cases. But
If compartmentalization is not carefully ap-
plied- the additional advantages could be
limited and the answoacics serious. Already
there is concern Mat the most sensitive in-
telligence goes only to top policyntsucers
who are too busy to read or act upon it. An-
alysts who are supposed to make sense of
collected Intelligence cannot do their job if
Pertinent information is withheld from
theta. Finished intelligence analyses. In
turn. are less useful 11 they are not distrib-
uted to those with an interest- in the sub-
ject. If policy action is considered or at-
tempted, the circle of knowledgeable Parties
inevitably widens so that some people will
become involve? who may disagree with the
Proposed action or who for some other
reason will be inclined to leak; and there
Sill be too many people Involved at this
stage to have much hope of finding the
leaker. Even the 011ie North Iran/Contra
operation, compartmentalized as it was,
eventually involved great numbers of People
within and outside the Government. In fact.
the Iran overture was indeed leaked rather
early in a little-noticed Jack Anderson
column, by some still unknown person.
Future use of establisned covert action and
Policy deliberation procedures, insisted
upon by the Tower Review Board and in
congressional reports on the Iran/Contra
affair, will ensure that a sizable number of
People always are involved.
But rather than accept for Itself the medi-
cine that it has sometimes proposed for the
-xecutive orancn. CJngress s now propos-
ing that it P x an a :he dennition of its own
'need to know.' :n what Secretary Carlucci
nas aptly :aoelea a misguided effort :o
"close every conceivaole .000nole" despite
esuaing oamage to U.S. foreign policy. the
Intelligence Committees now are promoting
1.estislation reouiring that they almost imme-
diately receive intormation on every single
covert action undertaken. We should In-
stead be confident that the political fallout
from the Iran/Contra affair has provided
far greater assurance than ever before that
notification will not be withheld temporari-
ly unless there is very good reason. Indeed.
the executive branch cioubtless in the
future will take pains to snare critical infor-
mation and attendant political risks with
Congress.
If the first thing Congress should do is to
vote down this mandatory early notification
legislation and the second is to form a com-
pact Joint Civersignt Committee, the third
must be to study carefully our options for
action and legislation to prevent future
Government leaks and to investigate and
punish them when they occur.
The law on punishing those disclosing
classified information is frequently an effec-
tive barrier to successful prosecution. Spe-
cifically. It is extremely hard to prove in
leak cases, as the law generally requires,
that there was "intent or reason to believe
that the information is to be used to the
injury of the United States. or to the advan-
tage of any foreign nation.''
Government prosecutors are faced with a
similar hurdle wnen it comes to convicting
journalists who reveal the identities of un-
dercover intelligence personnel. The law
governing this kind of disclosure requires
the Government to prove that such an indi-
vidual engaged in "a pattern of activities in-
tended to identify and expose covert agents
and with reason to believe that such activi-
ties would impair or impede the foreign in-
telligence activities of the United States".'
In short. although there are Inherent dif-
ficulties at apprehending a leaker. neither
Congress nor the executive branch cart
claim that vigorous or competent attempts
to do so have been undertaken or that pun-
istustent is swift and sure.
Given the difficulty of identifying those
who have leaked classified material, we
should also face the question of whether.
under what circumstances, and how we
should take action against the known party
to the deed?the reporter and media outlet
In question. Although the media sometimes
have exercised restraint in these issues, here
again the culture has become so permissive
that potential damage to U.S. Intelligence
collection and foreign policy often receive
short shrift when authors and editors are
deciding whether or not to publish. More-
over. like the leakers themselves, journalists
purporting to weigh carefully the national
security implications of such writings often
display notoriously poor Judgment in this
regard. Yet they contend that they alone
should be the judge and, for instance. hold
In their hands agents' lives and the future
effectiveness of intelligence collection sys-
tems costing billions of dollars of taxpayer
money. I believe it is beyond dispute, more-
over, that the excuse of "the public's right
to know." used as a defense in these cases is
a rationale that would be rejected by the
gait majority of the public itself.
Ideally, the press should agree among
themselves on some explicit or implicit code
March 31. 1988
.)i conauct '.3 curtail louses. A:
present. however. 'his seems unlikely. .
mecna anpears more ano more inclineo
iowarci -.hvesticative enortInce and advo-
cacy !ournausm. the demand tor leaks ap-
pears o de rising n tanaem with 'he
supply. '.Ve can also expect a :urther escala-
':on oi disputes over re:ease of classuleo
materials as satellite pnotograpny oi sensi-
:Ive events and installations becomes avail?
aole to the media.
In the 1970's. Investigative reporter Sey-
mour Henn reportedly :old a Navy War
College seminar that as a reporter his gm
,.vas to break into the Pentagon if he could
and steal ail the classified documents he
could. ana that their ;op was to stop him.'0
We have to ensure somehow that the Gov.
ernment anci the inetua remain fundamen-
tally on the same side where national securi-
ty is concerned. But the media is becoming
more rather than less aggressive with
recard to acquisition or publication of classi-
fied information. And its enormous collec-
tive resources instantly are marshalled to
stigmatize as unconstitutional extremism
any suggestion that the press must be held
legally accountable if it does not police
itself more effectively.
Unwilling to grapple with these intracta-
ble. messy, and politically volatile proolems.
some people insist that the damage we have
suffered is overstated, and that no matter
how great it may be. it does not justify tam-
pering with press liberties or even congres-
sional perquisites. But if our Government
cannot keep a secret and Congress displays
no sense of urgency in solving this problem,
we will become ever more severely crippled
In a dangerous world where the margin for
error is fast disappearing.
? Chapter 37 (Espionage and Censorship) of TlUe
10. United States Code. section 793.
? National Secunty Act of 1947 (50 U.S.C. 422),
TULE VI. section 502.
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