H.R. 1013, H.R. 1371, AND OTHER PROPOSALS WHICH ADDRESS THE ISSUE OF AFFORDING PRIOR NOTICE OF COVERT ACTIONS TO THE CONGRESS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000200340020-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 306
• Document Creation Date: December 22, 2016
• Document Release Date: December 1, 2011
• Sequence Number: 20
• Publication Date: April 1, 1987
• Content Type: MISC

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H.R. 1013, H.R. 1371, AND OTHER PRO-
POSALS WHICH ADDRESS THE ISSUE
OF AFFORDING PRIOR NOTICE OF
COVERT ACTIONS TO THE CONGRESS
SUBCOMMITTEE ON LEGISLATION
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
ONE HUNDREDTH CONGRESS
U.B. GOVERNMENT PRINTING OFFICE
76-195 WASHINGTON : 1987
For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
[Established by H. Res. 658, 95th Congress, 1st session].
LOUIS STOKES, Ohio, Chairman
DAVE McCURDY, Oklahoma HENRY J. HYDE, Illinois
ANTHONY C. BFJLENSON, California DICK CHENEY, Wyoming
ROBERT W. KASTENMEIER, Wisconsin BOB LIVINGSTON, Louisiana
DAN DANIEL, Virginia BOB McEWEN, Ohio
ROBERT A. ROE, New Jersey DAN LUNGREN, California
GEORGE E. BROWN, JR., California BUD SHUSTER, Pennsylvania
MATTHEW F. McHUGH, New York
BERNARD J. DWYER, New Jersey
CHARLES WILSON, Texas
BARBARA B. KENNELLY, Connecticut
THoJAS K. LATIMER, Staff Director
Micas. s . J. O'NsII., Chief Counsel
THOMAS R. SMSSrON, Associate Counsel
SuBCOMMrrrEE ON LEGISLATION
MATTHEW F. McHUGH, Nsw YoRS, Chairman
LOUIS STOKES, Ohio BOB LIVINGSTON, Louisiana
ROBERT W. KASTENMEIER, Wisconsin BUD SHUSTER, Pennsylvania
BERNARD J. DWYER, New Jersey DAN LUNGREN, California
CHARLES WILSON, Texas
BARBARA B. KENNELLY, Connecticut
BERNARD RAIMO, Counsel
STEPHEN D. NsleoN, Counsel
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CONTENTS
Page
Wednesday, April 1, 1987 ............................................................................................... 1
Wednesday, April 8, 1987 ............................................................................................... 73
Wednesday, June 10, 1987 .............................................................................................. 161
LIST OF WITNESSES
WEDNESDAY, APRIL 1, 1987
Testimony of the Honorable Jim Wright, Speaker of the House of Representa-
tives ................................................................................................................................. 7
Testimony of the Honorable Robert H. Michel, a Representative in Congress
from the State of Illinois ............................................................................................ 20
Statement of the Honorable Daniel Patrick Moynihan, U.S. Senator from the
State of New York ....................................................................................................... 35
Testimony of Admiral Stansfield Turner, U.S. Navy (Ret.), former Director of
Central Intelligence ..................................................................................................... 44
Testimony of William E. Colby, Esq., Former Director of Central Intelligence.. 50
Testimony of Ray Cline, Chairman, U.S. Global Strategy Council and former
Director for Intelligence, CIA .................................................................................... 52
WEDNESDAY, APRIL 8, 1987
Testimony of Richard H. Shultz, associate professor of international politics,
Fletcher School of Law and Diplomacy, Tufts University ................................... 77
Testimony of Morton Halperin, director, Washington Office of the American
Civil Liberties Union; former Senior Staff Member, National Security Coun-
cil; and former Deputy Assistant Secretary of Defense, International Securi-
ty Affairs ........................................................................................................................ 90
Testimony of Lloyd Cutler, Esq., Wilmer, Cutler & Pickering, former Counsel
to the President ............................................................................................................ 121
Testimony of William G. Miller, president, American Committee on United
States-Soviet Relations ................................................................................................ 123
Testimony of the Honorable Norman Y. Mineta, a Representative in Congress
from the State of California ....................................................................................... 153
WEDNESDAY, JUNE 10, 1987
Testimony of Michael H. Armacost, Under Secretary for Political Affairs,
Department of State .................................................................................................... 165
Testimony of David P. Doherty, general counsel, Central Intelligence Agency.. 175
APPENDIX
Appendix A, H.R. 1013 .................................................................................................... 206
Appendix B, H. R. 1371 ........................................................................... ......... . .. .......... 209
Appendix C, Letter to Permanent Select Committee on Intelligence from
Laurence H. Tribe .................................. ..................................................................... 211
Appendix D, Letter to Permanent Select Committee on Intelligence from
William Van Alstyne ................................................................................................... 212
Appendix E, Letter to Permanent Select Committee on Intelligence from
Cyrus Vance .................................................................................................................. 215
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McGeorge Bundy .................................................................................... Intelligence..............f..* ro.. m... 216
Appendix G, Letter to Permanent Select on
Stanfield Turner ................................................. mmittee ........................................................ 217
Appendix H, Letter to Representative Stokes from Louis Henkin ........................ 219
Appendix I, Letter to Representative Hyde from Stansfield Turner ..................... 223
Appendix J, Letter to Representative H from Richard Helms ......................... 224
Appendix K, Letter to Representative ;as from 7ON=. "Brzezinski ............... 226
Appendix L, Letter to Representative McHugh froBolton ................... 227
Appendix M, Attachments to Testimony of Morton Halperin ................................ 235
Appendix N, Memorandum for the Attorney General concerning The Presi-
dent's Compliance with the "?imely Notification" Requirement of Section
501(b) of the National Security Act; prepared by Assistant Attorney Genral
Charles J. Cooper ................................. ~g ......................................................... 247
Appendix 0, Memorandum, Power o.. Congress to Obtain Advance Information
Concernin, Intelligence Operations; prepared by Raymond J. Celada, Senior
Specialist in American Public Law, Library of Congress ..................................... 274
Appendix P, Memorandum, Analysis o Constitutionality of Proposal Enhanc-
ing Congressional Oversight of Intelligence Activities, prey Raymond
J. Celada, Senior Specialist in American Public Law, Lib of Congress ..... 298
Appendix Q, Text of Title V of the National Security Act of 1747 ........................ 313
Appendix R, Text of Section 662 of the Foreign Assistance Act of 1901 ............... 314
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H.R. 1013, H.R. 1371, AND OTHER PROPOSALS
WHICH ADDRESS THE ISSUE OF AFFORDING
PRIOR NOTICE OF COVERT ACTIONS TO THE
CONGRESS
WEDNESDAY, APRIL 1, 1987
HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:00 a.m., in Room
2247, Rayburn House Office Building, Hon. Matt McHugh (Chair-
man of the Subcommittee) presiding.
Present: Representatives McHugh [presiding], Stokes, Kasten-
meier, Kennelly and Livingston.
Also Present: Representatives Beilenson and Hyde.
Staff Present: Michael J. O'Neil, Chief Counsel; Thomas R. Smee-
ton, Associate Counsel; Bernard Raimo, Jr., Counsel; Stephen D.
Nelson, Counsel; Robert J. Surrette, Professional Staff Member;
Jeanne M. McNally, Clerk; Sharon Curcio, Assistant Clerk; Merritt
R. Clark, Chief, Registry/Security; Lawrence D. Covington, Assist-
ant, Registry/Security.
Chairman McHUGH. The Committee will please come to order.
Today the Subcommittee begins two days of hearings on the sub-
ject of congressional oversight of covert operations. More specifical-
ly, we will be examining whether existing procedures governing
the President's authorization of covert operations, as well as his no-
tification of and consultation with Congress, are adequate to assure
meaningful congressional oversight of such operations.
Despite the fact that covert operations represent only a small
fraction of the intelligence community's work, they tend to gener-
ate the most attention and controversy when publicly revealed. We
would all agree that such operations are appropriate in certain
cases. However, because of their sensitivity and potential for con-
troversy at home, it is particularly important that covert oper-
ations be soundly conceived and be seen as advancing the legiti-
mate interests of the United States if they become publicly known.
It is for this reason, as well as Congress' right to share in the
establishment of U.S. foreign policy, that the intelligence commit-
tees are involved in the oversight of covert operations.
The primary legislation governing congressional oversight is the
Hughes-Ryan amendment of 1974, as amended by the Intelligence
Oversight Act of 1980.
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The statute provides that the intelligence committees of the Con-
gress must be kept "fully and currently informed of all intelligence
activities * * * including any significant anticipated intelligence
activity * * *." This provision establishes the general requirement
that the intelligence committees must be given prior notice of any
covert operation.
However, the Oversight Act then, goes on to create two excep-
tions 'to the general rule. First, "if the President determines it is
essential * * * to meet extraordinary circumstances affecting vital
interests of the United States," the President may restrict prior
notice to the House and Senate leadership and the chairman and
ranking minority members of the two intelligence committees. This
group of eight in the leadership is sometimes referred to as the
"Gang of Eight".
Second, the Act recognizes that in some cases the President may
not give prior notice to anyone, but in those cases the Act requires
the President to "fully inform the intelligence committees in a
timely fashion.
This second exception to the general rule requiring prior notice
will be a main focus of these hearings. In the case of the Presi-
dent's decision to covertly sell military arms to Iran, he signed his
Finding authorizing the operation in January of 1986. The Presi-
dent not only failed to provide anyone in Congress with notice of
this operation prior to its inception, he never provided notice. It
was not until November of 1986 that anyone in ogress learned of
this covert operation, and then only because a magazine in the
Middle East disclosed it.
Our purpose in these hearings will not be to revisit the entire
Iran-contra. episode. That is for other committees to do. However,
inasmuch as the President may decide to initiate other covert oper-
ations, it is important for the intelligence committees to determine
whether existing law contributed to the breakdown of congression-
al oversight in the case of the Iran arms sales.
Of course, many of us in Congress believe that the President
should have given the intelligence committees prior notice of his
intent to covertly sell arms to Iran. If he had done so, Members on
both sides of the aisle surely would have expressed strong objec-
tions. While these objections would have been advisory only, they
might have helped the President avoid embarking on a policy
which was so deeply flawed in its conception and its implementa-
tion. This is a classic example of why prior notification and consul-
tation with the intelligence committees are not only a benefit for
the committees, but a benefit for the President as well.
However, as previously noted, current law does not require the
President to give prior notice in all cases. He may defer notice
until after the operation has begun, but in those cases he must pro-
vide notice "in a timely fashion." The problem here is that appro-
priate cases for deferring notice are not defined, nor is there a defi-
nition of what constitutes timely notice after the fact.
The Subcommittee has before it today two bills that have been
introduced to deal with these questions. One is H.R. 1371, which
was introduced by a former member of the Intelligence Committee,
Mr. Mineta of California. It would require the President to provide
prior notice of all covert activities. The other bill is H.R. 1013,
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which was introduced by Mr. Stokes of Ohio, who is the Chairman
of the House Intelligence Committee, and Mr. Boland of Massachu-
setts, its first Chairman. It has been cosponsored by all of the Ma-
jority Members of this Committee and by 49 of our colleagues in
the House.
H.R. 1013 is designed to eliminate the ambiguities in current
law. It would retain the general requirement that the two intelli-
gence committees be given prior notice of all covert activities, as
well as two exceptions to this general rule. The President would
continue to have discretion to restrict prior notice to the so-called
Gang of Eight where required by "extraordinary circumstance af-
fecting vital interests of the United States." However, the Presi-
dent could withhold prior notice only where such extraordinary cir-
cumstances exist and where "time is of the essence"; and in such
cases notice would have to be given not more than 48 hours after
the President has signed his finding or the intelligence activity has
begun.
Thus under this bill timely notice would be specifically defined.
The bill would also strike the preambular clauses of the Oversight
Act, which the authors maintain adds nothing to the statute's clar-
ity.
H.R. 1013 would also require that findings by the President be in
writing, and that copies be provided to the two intelligence commit-
tees, and to the Vice President, the Director of Central Intelli-
gence, and the Secretaries of State and Defense.
The Committee has a very distinguished group of witnesses to ad-
dress these issues. We are very appreciative that they have taken
time to be with us. We look forward to the testimony.
Before calling our first distinguished witness, I would ask Mr.
Livingston if he has any opening comments.
[The full statement of Mr. McHugh follows:]
OPENING STATEMENT OF HON. MATTHEW F. MCHUGH
Today the Subcommittee begins two days of hearings on the subject of Congres-
sional oversight of covert operations. More specifically, we will be examining wheth-
er existing procedures governing the President's authorization of covert operations,
as well as his notification of an consultation with Congress, are adequate to assure
meaningful Congressional oversight of such operations.
Covert operations, or "special activities" as they are often referred to in the intel-
ligence community, have traditionally included political, economic, propaganda and
paramilitary activities designed to influence foreign governments, organizations or
events. In the words of President Reagan's Executive Order of December 1981 relat-
ing to U.S. Intelligence Activities, covert operations are those "conducted in support
of national foreign policy objectives abroad which are planned and executed so that
the role of the United States is not approved or acknowledged publicly ... but
which are not intended to influence U.S. political processes, public opinion, policies,
or media and do not include diplomatic activities or the collection and production of
intelligence or related support functions."
Despite the fact that covert operations represent only a small fraction of the intel-
ligence community's work, they tend to generate the most attention and controversy
when publicly revealed. We would all agree that such operations are appropriate in
certain cases. However, because of their sensitivity and potential for controversy at
home, it is particularly important that covert operations be soundly conceived and
be seen as advancing legitimate U.S. interests if they become publicly known. It is
for this reason, as well as Congress' right to share in the establishment of U.S. for-
eign policy, that the intelligence committees are involved in the oversight of covert
operations.
The primary Is i lation governing Congressional oversight is the Hughes-Ryan
amendment of 1974, as amended by the Intelligence Oversight Act of 1980. The
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Oversight Act begins with a preambular clause that notes that its requirements are
imposed "to the extent consistent with all applicable authority and duties, including
those conferred by the Constitution upon the executive and legislative branches of
the government."
The statute then provides that the intelligence committees of the Congress must
be kept "fully and currently informed of all intelligence activities . . . including any
significant anticipated intelligence activity. . . ." This provision establishes the gen-
eral requirement that the intelligence committees must be given prior notice of any
covert operation.
However, the Oversight Act then goes on to create two exceptions to the general
rule. First, "if the President determines it is essential ... to meet extraordinary
circumstances affecting vital interests of the United States," the President may re-
strict prior notice to the House and Senate leadership and the chairman and rank-
ing minority members of the two intelligence committees (the so-called "Gang of
Eight"). Second, the Act recognizes that in some cases the President may not give
prior notice to anyone, but in those cases the Act requires the President to "fully
inform the intelligence committees in a timely fashion...."
This second exception to the general rule requiring prior notice will be a main
focus of these hearings. In the case of the President's decision to covertly sell mili-
tary arms to Iran, he signed his "finding" authorizing the operation in January
1986. The President not only failed to provide anyone in Congress with notice of this
operation prior to its inception, he never provided notice. It was not until November
of 1986 that anyone in Congress learned of this covert operation, and then only be-
cause a magazine in the Middle East disclosed it.
Our purpose in these hearings will not be to revisit the entire Iran-Contra epi-
sode. That is for other committees to do. However, inasmuch as the President may
decide to initiate other covert operations, it is important for the intelligence com-
mittees to determine whether existing law contributed to the breakdown of Congres-
sional oversight in the case of the Iran arms sales.
Of course, many of us in Congress believe that the President should have given
the intelligence committees prior notice of his intent to covertly sell arms to Iran. If
he had done so, members on both sides of the aisle surely would have expressed
strong objections. While these objections would have been advisory only, they might
have helped the President avoid embarking on a policy which was so deeply flawed
in its conception and implementation. This is a classic example of why prior notifi-
cation and consultation with the intelligence committees are not only a benefit for
the committees, but a benefit for the President as well.
However, as previously noted, current law does not require the President to give
prior notice in all cases. He may defer notice until after the operation has begun,
but in those cases he must provide notice "in a timely fashion." The problem here is
that appropriate cases for deferring notice are not defined, nor is there a definition
of what constitutes timely notice after the fact.
When the Oversight Act was considered by the Senate in 1980, a number of Sena-
tors suggested that prior notice should be given 'in all cases except where emergency
circumstances preclude the President from providing it. For example, Senator
Inouye, the first Chairman of the Senate Select Committee on Intelligence, said the
following during floor debate:
"I am of the firm belief that the only time the President would not consult with
the Intelligence Committees in advance would be in matters of extreme exigency. In
my experience as chairman of the Intelligence Committee and as a continuing
member of that committee, I can conceive of almost no circumstance which would
warrant withholding of prior notice, except in those very rare situations where the
President does not have sufficient time to consult with Congress."
Similar statements were made by other Senators at the time. The legislative his-
tory is less clear about what should constitute timely notice after the fact if prior
notice is not given. What is clear to most of us today is that the President utterly
failed to give timely notice to the intelligence committees after authorizing the
covert sale of U.S. arms to Iran.
The Subcommittee has before it today two bills that have been introduced to deal
with these questions. One is H.R. 1371, which was introduced by a former member
of the Intelligence Committee, Mr. Mineta of California. It would require the Presi
dent to provide prior notice of all covert activities. The other bill is H.R. 1013, which
was introduced by Mr. Stokes of Ohio, the Chairman of the House Intelligence Com-
mittee, and Mr. Boland of Massachusetts, its first Chairman. It has been cospon-
sored b_y all of the Majority Members of this Committee and by 49 of our colleagues
in the House.
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H.R. 1013 is designed to eliminate the ambiguities in existing law. It would retain
the general requirement that the two intelligence committees be given prior notice
of all covert activities, as well as two exceptions to this general rule. The President
would continue to have discretion to restrict prior notice to the so-called Gang of
Eight where required by "extraordinary circumstance affecting vital interests of the
United States." However, the President could withhold prior notice only where such
extraordinary circumstances exist and where "time is of the essence"; and in such
cases notice would have to be given not more than 48 hours after the President has
signed his finding or the intelligence activity has begun. Thus, timely notice would
be specifically defined. The bill would also strike the preambular clauses of the
Oversight Act, which the authors maintain adds nothing to the statute's clarity.
H.R. 1013 would also require that findings by the President be in writing, and
that copies be provided to the two intelligence. committees, and to the Vice Presi-
dent, the Director of Central Intelligence, and the Secretaries of State and Defense.
We have a very distinguished group of witnesses to address these proposals. We
greatly appreciate their taking time to provide the Subcommittee with their views,
and we look forward to their testimony.
Mr. LIVINGSTON. Thank you very much, Mr. Chairman.
I have no formal statement. While I sympathize with the motiva-
tions of the Members who have authored these bills that are before
the Committee, and we agree that certain facts uncovered in recent
months might prompt such legislation, I have grave reservations
about the implementation of legislation of this sort, and its poten-
tial impact upon the powers of the President as Commander-in-
Chief.
So I am looking forward to hearing the witnesses. I look forward
to asking questions, and I hope that we will indeed unveil some
facts which might broaden our perspective of what is a very serious
matter. I appreciate your giving me this opportunity.
Chairman McHUGH. Thank you.
I would also like to ask our Chairman, Mr. Stokes, who is the
primary author of this bill, if he would like to make any opening
remarks.
Mr. STOKES. Mr. Chairman, I do have an opening statement but I
would yield if you would like to recognize the Speaker of the
House, and I can yield my statement at this time.
Chairman McHUGH. Without objection, that would be made part
of the record.
[The statement of Mr. Stokes follows:]
OPENING STATEMENT OF HON. Louis STOKFs
In a memorandum dated December 17, 1986, the Office of Legal Counsel at the
Department of Justice, stated, referring to covert arms sales to Iran, that "The
President was within his authority in maintaining the secrecy of this sensitive dip-
lomatic initiative from Congress until such time as he believed that disclosure to
Congress would not interfere with the success of the operation." The basis for this
conclusion is that the President has "wide discretion" under the Intelligence Over-
sight Act to choose a "reasonable moment" for notifying Congress.
This discretion, according to the memo, is "rooted at least as firmly in the Pre-
sient's consititutional authority and duties as in the terms of any statute." The con-
stitutional basis is article II, section 1 of the Constitution "The executive power
shall be vested in a President of the United- States of America." But, as the memo
itself states, the President's authority under this clause is "subject only to limits
specifically. set forth in the Constitution itself and to such statutory limitations as
the Constitution permits Congress to impose by exercising one of its enumerated
powers."
There is no quarrel between members of the committee and the President on who
has the executive authority in this Government or who must conduct the foreign
affairs of the United States. That is the President's responsibility and he does have
wide discretion in conducting that activity. However, Congress also has wide powers.
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It alone makes the laws of the United States. It alone appropriates money and may
require an accounting of the same. Clearly inherent in the power to make laws is
the need to'obtain information necessary to ensure their proper execution. Thus,
when Congress legislates to require information and ties this requirement to the ap-
propriation of funds, it also stands on firm constitutional ground.
The trouble, of course, is that the Constitution does not clearly delineate where
the authority of one branch of Government ends and the other begins. Indeed, it
appears that the Founding Fathers fully intended that conflicts of authority be re-
solved principally by the counterbalancing of one branch against another. And, the
third branch of Government, the judiciary, has been reluctant to settle disputes be-
tween the executive and legislative branch in areas where their interests and au-
thorities contend one with the other.
In the case of the conduct of covert action operations by the executive branch
which have been approved by the President, the administration' claims some sort of
constitutional privilege on the part of the President to withhold notice. That is not a
new claim. It was made during the Carter administration as well. However, it is
clear from the De meat's memorandum that this administration relied as much
on the 1 of the Intelligence Oversight Act as it did on constitutional author-
ity to w ithhold notice of covert arms sales to Iran. The department tells us in very
clear language that the phrase "in a timely manner" is vague and subject to liberal
interpretation by the President. Under those circumstances, it seems clear that if
Congress intended that phrase to mean someth more specific, or if it intends that
it should in the future, ~t behooves us to modify the statute.
I believe that the Congress thought it was writing into the statute an exception to
the prior notification rule only in cases where time was of the essence. We didn't
say that specifically m an excess of caution. That caution has betrayed us and may
well in the future. We should return to the understanding that seems to have exist-
ed in 1980, namely, that prior notice should be withheld only in cases where the
President is unable-because of the press of events-to notify Congress before covert
action begins.
That is the principal purpose for which H.R. 1013 was introduced, to restate in
clear terms the requirement for prior notification, except in cases where time is of
the essence. The bill leaves in place those provisions in the act which permit notifi-
cation to a smaller group than the two Intelligence Committees in cases where ex-
treme sensitivity suggest to the President that knowledge of a particular covert
action should be severely restricted.
Finally, the bill requires that a signed copy of every Presidential finding be pro-
vided to the Intelligence Committees to ensure that, as did not happen during the
Iran affair, Congress knows exactly what the President did approve and when he
approved it.
I believe that H.R. 1013 is firmly grounded in constitutional authority. I think
that as long as Congress legislates in such a manner as to reasonably and responsi-
bly obtain the information it needs to perform its duties, while at the same time
leavinif the President to make the decisions and retain flexibility to conduct covert
operations as he directs, we can have that confidence.
I remind both witnesses and those who are present here today that the sensitivity
of any particular piece of information-because that is all Congress is requiring, the
provision of information-the sensitivity of that information offers no reasonable
grounds for withholding that information from Congress. The executive branch
ought to share such information with a co-equal branch of Government, the legisla-
ture. The terms of that sharing must be reasonable and include appropriate security
arrangements, but security issues are insufficient grounds for a President to deny
information to Congress when the procedures for receiving that information are set
forth in the statute signed by the President. It is simply inappropriate for executive
branch officials to argue that Congress should not be trustedp with information.
Their own track record at keeping secrets shows that this is an unbalanced view
and one unfounded in reality.
Chairman McHuGH. At this time, we would ask the distin-
guished Speaker of the House, Jim Wright of Texas, to come to the
table. The 'Speaker has been very interested in a capable intelli-
gence capacity and in the oversight function which Congress must
necessarily exercise.
As M 'ority Leader he served ex officio as a member of the Intel-
ligence (Committee and took part in many of our proceedings. So we
are delighted, 1r. Speaker, that you are here with us this morning.
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STATEMENT OF HON. JIM WRIGHT, SPEAKER OF THE HOUSE OF
REPRESENTATIVES
Mr. WRIGHT. Thank you. I appreciate the invitation to come and
talk with the committee in behalf of this legislation which I think
is vitally necessary. As I have observed the operation of the Na-
tional Security Act, Sections 501 and 502 it has become painfully
apparent to me that certain ambiguities have been exploited per-
mitting activity to occur which clearly was not intended in the
original legislation.
The bill before you makes two very simple changes, both of them
quite clearly consistent with the original intent of Congress, in cre-
ating this committee and this procedure for consultation.
I recall very clearly when the procedure was created in law. It
was done so at the request of the Chief Executive who felt that rep-
resentatives of the Executive Branch of government. were being re-
quired to report to a proliferating number of committees and sub-
committees in Congress. The President himself wanted one reposi-
tory of this type of information.
The Speaker, Speaker O'Neill, very assiduously interviewed and
selected Members to serve on this committee. One of the qualifica-
tions for service on this committee was that a person be capable of
maintaining secrecy and silence, not of leaking information given
to the committee by the Executive Branch of government with
regard to classified activities.
At the same time, it was felt that the creation of the committee
itself very clearly implied that the members of the committee
should serve as one part of a two-way conduit with the Executive
Branch and that we could know of things in advance in order that
we might give our advice to the Executive Branch of government,
advice and consent being part and parcel of the operation between
the two branches.
Now, I am quite sure in my mind that if the provisions intended
in the law-and I think unambiguously contained in the law-had
been followed as Congress intended, most assuredly members of the
Legislative Branch of government would have expressed our;reser-
vations to the Chief Executive about the appropriateness of this
covert plan to sell arms to Iran, and quite possibly the entire em-
barrassment which has been visited upon our country might have
been avoided.
It was that kind of thing that was anticipated in the requirement
that there be reports to some limited number of people.
Now, this bill, the Stokes bill, would modify section 662 of the
Foreign Assistance Act to require that all covert action findings be
in writing. These written finding would have to be provided to the
House and Senate Intelligence Committees, the Director of Central
Intelligence, and the statutory members of the National Security
Council prior to initiation of the proposed covert action.
The bill would retain a provision in existing law which in certain
circumstances permits the required prior notice to be given to 8
specified leaders of Congress, a bipartisan group of people, rather
than to the full membership of both intelligence committees.
I would contend from my reading of the law that what was ex-
pressly anticipated was no situation at all in which prior notice
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could be withheld from any congressional person. I don't believe
that the reading of section 501, or section 502 of our Act, antici-
pates any situation whatever in which all Members of Congress
may be excluded from knowledge, prior knowledge, of what is going
on. This is because section 501(b), in reference to the requirement
that a select committee on intelligence of the Senate and the
House be fully and currently informed, is modified only to the
extent that if the President determines that it is essential to limit
prior notice, not to exclude prior notice, but to limit prior notice, to
meet extraordinary circumstances affecting vital interests of the
United States, then such notice shall be limited to the Chairman
and Ranking Minority Members of the Intelligence Committees,
the Speaker and Minority Leader of the House of Representatives,
and Majority and Minority Leaders of the Senate.
It shall be limited to those people. It shall not be excluded or
withheld, but shall be limited to those people if these exigencies re-
quire it to be limited and time is such that members of the Com-
mittee cannot be notified.
Now, there have been situations, two of which I can recite to
you, in which these leaders were informed in a prior way when it
clearly was not possible nor perhaps advisable to notify the full
Committee in advance.
One of them involved the invasion of Grenada, and on the eve of
that action the President sent representatives to the Capitol and
asked certain ones of us to follow certain procedures by which we
assembled in the White House that evening rather late, and dis-
cussed with the President and the Secretary of Defense and Secre-
tary of State and certain others what was about to happen. What
did happen occurred at approximately 5 a.m. and we were learning
of this about 10:00 p.m. when our conversations were going on.
That was prior notice; it complied with the law.
Surely in a matter of that kind, prior notice could be and proper-
ly was limited. But it wasn't excluded, it wasn't withheld. It was
given.
A second instance involved the bombing of Libya. I was out of
town. L was in Ft. Worth when this occurred. I received a notifica-
tion that I should find a secure telephone so that at 4 o'clock in the
afternoon I might talk with people in the Central Intelligence
Agency and representatives of the White House.
I did so. The only secure telephone which I could establish in my
home community being at the FBI in one of the Federal buildings.
I did so and completed the telephone call and was advised of what
was getting ready to happen. It happened within 2 hours of my
being notified, perhaps an hour and-a half.
But it did constitute prior notice. Prior notice was given.
So it seems to me that this timely notice then was given in each
of those instances to the committee after the action had begun.
That was in keeping with the statute.
In the case of the Iran arms sales, however, there was no prior
notice given to anybody. Nobody was advised. No consultation was
held. No co ional party was notified. Nobody knew anything
about it unt"course, it was printed some 10 months later in a
Middle Eastern newspaper. And then at that point the so-called
timely notice began to take place.
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Obviously that is not what is intended by the statute, ten months
later after people find out about it through a leak in the newspa-
per. That is not timely notice.'
So I think it has become necessary that to avoid those ambigu-
ities, or any contention on the part of anybody in the Executive
Branch that timely notice is fulfilled by withholding all informa-
tion until after a leak establishes public knowledge, we must define
what constitutes timely notice. There has been a breach and I
think this bill properly defines timely notice as not more than 48
hours. That would be reasonable and it seems to me that in the in-
terests of maintaining the right and proper balance of powers be-
tween the Executive and Legislative Branches, we must take this
kind of action.
Even in those instances in which the statute has permitted prior
notice to be limited to a certain few, even then it is quite' clear that
the statute requires that timely notice be given and that it antici-
pates that timely notice would be maybe a couple days not months
surely, not weeks, and most assuredly not months.
The President shall fully inform the intelligence committees in a
timely fashion of intelligence operations in foreign countries for
which prior notice was not given under subsection A, and shall pro-
vide a statement of the reasons for not giving prior notice. Well,
this bill in my opinion should not have been necessary. Mr. Chair-
man, as someone who has served ex officio on this select committee
for nearly' 10 years, I can state from experience that when the
present legislation was enacted the Congress intended it be notified
before any covert actions took place.
When we use this term "timely fashion" in the law with regard
to those extraordinary circumstances when time did not permit
prior notification, the Congress meant a couple days, not months.
The colossal misjudgments made by some in the Administration
in the arms deal with Iran confirm the need for legislation tighten-
ing this law.
It is my honest belief that had the President notified the Con-
gress as to what was intended in Iran, he might have gained a
clearer understanding of the risks involved. Had the Congress re-
ceived prior notification, it is certain that some of us would have
advised against that unfortunate policy. The United States govern-
ment might well have been spared this embarrassing and costly
episode which continues to undermine our foreign policy.
Mr. Chairman, I commend your leadership in holding these hear-
ings on this important matter, and I know that you are planning
the expeditious action which this issue warrants.
[The statement of Mr. Wright follows:]
STATEMENT OF HON. JIM WRIGHT
Thank you for this opportunity. I have come to support the Intelligence Oversight
Amendments of 1987 introduced by Chairman Stokes.
The bill makes two very simple changes in the statutes. Both are clearly consist-
ent with what Congress intended originally. If the language proposed today by Mr.
Stokes had been in the law, it is quite probable that the national embarrassment of
the entire "Irangate" episode would have been avoided.
The Stokes bill (H.R. 1013) modifies Section 662 of the Foreign Assistance Act to
require that all covert action "findings" be in writing. These written findings would
have to be provided to the House and Senate Intelligence Committees, the Director
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10
of Central Intelligence, and the statutory members of the National Security Council
prior to the initiation of the proposed covert action. The bill would retain a provi-
sion of existing law which, in certain circumstances, permits the required prior
notice to be given to eight specified Congressional leaders, rather than to the full
membership of both Intelligence Committees.
H.R. 1018 would also amend Section 501 of the National Security Act to tighten
up the present language ciylling for motif cation in a "timely fashion" when prior
notice is not given. Only in extraordinary circumstances affecting the vital interests
of the United States, and only where time is bf ? the essence, -the bill would 'permit
the Congressional notification to be deferred for "not more than 48 hours" after the
initiation of thq;tntelligence activity or the signing of the finding under Section 662.
Mr. Chairman; .this is a bill that should not have been necessary. As someone who
served ex-officio on the Select Committee on Intelligence for nearly ten years, I can
state from experience that%when the present legislation was enacted, the Congress
intended that it be notified before any covert actions took place. When we used the
term "timely fashion" in the law with regard to those extraordinary circumstances
when time did not permit prior notification, the Congress meant a couple of. days
not more than ten months.
The colossal pudgments made by the Administration in the arms deal with
Iran confirm thp need for this new legislation. Had the President notified the Con-
gress as to what he was intending to do in Iran, he might have gained, a clearer
understanding of the risks involy Had the Congress received prior notification, .it
is certain that some of us would have advised against that unfortunate policy. The
U.S.. government just might have been spared this embarrassing and costly -episode
which continues to undercut our foreign policy.
Mr. Chairman, I commend your leadership in holding pprompt h earinga on this im-
portant matter. I know that you are planning the expeditious action that this issue
warrants.
Chairman McHUGH. Thank you very much, Mr. Speaker, for
your testimony. We will proceed under the five-minute rule with.
questions.
Mr. Speaker, I think some will argue that in certain limited
cases, particularly where life is at stake, that is where agents are
asked to undertake especially risky operations, the President
should have discretion not only to withhold prior notice, but also to
withhold notice beyond 48 hours.
That is to give the President some flexibility beyond that limita-
tion of time when he believes that there is an especially risky situ-
ation for agents conducting the operation.
Do you believe there is any justification for giving the President
that flexibilit in that type of situation; or, should the President be
required as the bill suggests to provide this kind of notification to
Congress, either through the intelligence committees or to the lim-
ited leadership group of eight?
Mr. WIuGHrr.-I-don't believe the statute anticipates that the lives
of our agents or any other people would have been adversely affect-
ed or endangered in any way by the President's carrying out the
provisions in the statute giving prior notice to a limited number of
people. I don't think there is any suggestion that the lives of
United States intelligence agents would have been endangered by
the President's giving notice, as the law required him to do, to the
Chairman of this committee and the Ranking Minority Member of
this committee, their counterparts in the Senate, the Speaker and
the Minority Leader of the ~ and the majority and minority
leaders of the Senate.
I cannot imagine anybody suggesting or thinking that the lives of
American intelligence agents would be endangered by the Presi-
dent's giving that information to that limited number of people on
a prior basis.
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Chairman McHUGH. Let's assume that everyone agrees that in
the case of the Iran arms sale, notice should have been given and
that certainly the President could have provided notice on a prior
basis or within 48 hours. But of course this legislation will apply to
all cases, and the question is whether or not in other types of situa-
tions, let's say a hostage rescue situation which plays out over a
period of some days, and in which covert activity is required and
that covert activity places the agents involved in the rescue oper-
ation in jeopardy should the President in that situation be required
to share that information with Members of Congress?
Mr. WRIGHT. Well, I think--
Chairman McHUGH. I think that is the hard case that we will be
presented with.
Mr. WRIGHT. Let's look to the case of what happened with regard
to our abortive attempt to rescue the hostages in Iran during Presi-
dent Carter's administration.
In that instance I am not aware of whether prior notice was or
was not given to the Speaker and Minority Leader, or to the Chair-
men and Ranking Members of the House. I suspect that it was not.
I received a telephone call at approximately 2 o'clock in the morn-
ing from Secretary of State Vance telling me what had happened.
At that moment the disaster had occurred. The debacle of our mis-
fortune had just occurred and they were at that time striving to
extricate themselves. Our Service personnel were attempting to
return to safety of our ships.
I think in that particular instance prior notice probably wasn't
given but timely notice surely was. It may have been that timely
notice was given and had it not been given, we learned of it
anyway in the most egregious manner. I cannot believe that if
President Carter had followed the provisions explicit in section 501
of the Act, the lives of the rescuers would have been put in jeop-
ardy. It is conceivable that in the secretive mind which is part and
parcel of intelligence operatives-and I don't say that in a pejora-
tive sense, or in the sense of being critical but rather I am trying
to be analytical-that they would suppose that telling anybody in
the Legislative Branch would put their plans in jeopardy.
That after all is the warp and woof of the makings of executive
arrogance-the idea that certain actions are too precious, too risky,
too important to be shared with the Congress. That isn't what was
in the minds of the people who wrote the Constitution.
Chairman McHUGH. Thank you.
Mr. Livingston.
Mr. LIVINGSTON. Thank you, Mr. Chairman.
Mr. Speaker, I appreciate your remarks and frankly, with regard
to your assessment of the current Iranian situation I really don't
find much to quarrel with. But I am reminded of the old courtroom
adage that bad facts make bad law, and I am really concerned that
we are rushing to judgment here with a piece of legislation that is
geared to prevent a reoccurrence of the circumstances surrounding
the Iranian situation, and that we will ultimately cause great harm
to unknown individuals in the future by virtue of our somewhat
hasty action.
Specifically, I guess I am concerned about the 48 hour provision.
I am reminded that-you recall the bombing of Libya, and I am re-
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minded of the fact that Sam Donaldson minutes, perhaps as many
as 30 minutes or so prior to the actual bombing, was on television
talking about a projected strike in Libya, and in fact we are not the
best keepers of secrets in the United States Congress.
That is not an indictment of any single individual, but when you
deal with a body as large as ours with the Members, with the
staffs, in fact we just don't keep secrets well. I am concerned that
there would be or might be circumstances that might arise that
might necessitate the Commander-in-Chief of the Armed Forces
keeping the lid on an operation for much longer than 48 hours, and
I use as an example the situation that involved the-again going
back to the first Iranian hostage situation-the folks who were
hiding in the Canadian Embassy.
In fact there were ongoing operations to try to free those people
over a prolonged period of time, many months if my memory
serves me correctly, and had it gotten out that those folks were in
the Canadian Embassy, Lord knows what would have happened to
them and to the Canadian people.
I think that-I just have grave concerns that we are seeking to
remedy a single situation which may have far broader implications
than our initial objectives. I will just invite your comments.
Mr. WRIGHT. First, with regard to your apprehension that we
might be rushing to judgment, I would simply point out that it has
been more than four months since we learned of what I believe to
be a clear and unambiguous violation of the statute. Most certainly
all of us would agree that this has been a violation of the intent of
the statute, the spirit of the statute, and I believe, a violation of
the letter of the statute.
I don't believe that is a question of ambiguity at all.
We learned of that four months ago. Those of us who have some
responsibility to protect the integrity of the Legislative Branch in
the constitutional scheme of things have felt quite strongly for
these four months that something must be done. It is important for
this committee in its deliberate way to study and ponder and take
testimony, to learn everything that can be learned about what hap-
pened and why, and to examine the rationale of those who advised
the President that he could and should do as he did and not advise
the Congress in keeping with the statute.
Now, it seems to me that what is being done here is done in a
very deliberate way. I don't believe it is rushing to judgment. I
think this committee as an agent of the Congress is fulfilling its
responsibility in attempting to arantee for the benefit of the
nation and for the protection of the Executive Branch as well that
misjudgments of this kind shall not recur and that at least we will
have some means of attempting to dissuade people from this kind
of a misadventure in advance.
With regard to the contention that there may be circumstances
in which it would be wise for Congress to be kept entirely in the
dark, and I don't know for how long a period of time you think
that is wise, but I believe the entire Constitution and the spirit of
this law does not wish to leave that discretion entirely in the hands
of the Executive Branch.
If you just leave it wide open and allow the Executive Branch to
decide when the situation is sufficiently worthy that it warrants
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13
violating this statute and not advising Congress, it is, in effect, to
have no statute at all. You might as well not have an intelligence
committee if the Executive Branch is simply expected to come
when it wants to and when it is convenient to their purpose to con-
sult with Congress.
So unless there is some clear criterion which the gentleman
would establish, I don't think it would be wise for us just to antici-
pate that circumstances could arise and it is up to someone in the
Executive Branch to decide if it wants under those circumstances
to advise the Congress. In such case who is going to make the deci-
sion?
Is it going to be the President? The Secretary of State? Is it going
to be the Chairman of the Joint Chiefs of Staff? Is it going to be
the National Security Council? Is it going to be some Lieutenant
Colonel?
If you leave it undefined you leave it up in the air and invite this
kind of thing again it seems to me.
Mr. LiviNGSTON. My time is up. Thank you.
Chairman McHUGH. Mr. Stokes.
Mr. STOKES. Thank you very much, Mr. Chairman.
Firstly, I would want to express my appreciation to the distin-
guished Speaker for his appearance here this morning, and for the
excellent testimony he has given on behalf of the Stokes-Boland
legislation.
Mr. Speaker, it appears to me that in this legislation we are at-
tempting also to address a more grievous situation. The gravamen
of the offense as I see it here, is that from everything that we know
in the public domain at this point in time, the President of the
United States decided either upon his own or upon advice of some-
one that this was an operation which could not be revealed to Con-
gress because Congress could not be trusted with this information.
And it is even broader than that; not only was Congress not trust-
ed, members of his own Cabinet were not trusted. So he cannot just
say it was his fear of leaks in the Congress. But it seems even more
grievous that he trusted in this operation a foreign nation and
principals in a foreign nation.
The ultimate leak came from the Iranians themselves who
leaked the matter to a Beirut newspaper and as a consequence of it
this matter became known publicly.
I would just like to have you address that broad principle in
terms of any evidence that Congress in the case of this sort ought
not to be trusted.
Mr. WRIGHT. Well, I think that comes to the heart of the balance
of powers. Perhaps it is inherent in the Executive Branch to want
to protect the prerogatives of that branch of government. If I were
in that branch of government, perhaps I would see it that way.
But I am certain in my mind that the people who wrote the Con-
stitution intended that Congress could be trusted. James Madison
surely intended that the people themselves could be trusted. That
was at the heart of the very central core philosophy of this govern-
ment.
Now, if we were to assume that Congress cannot be trusted with
information, then we betray a lack of confidence in this fundamen-
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tal system of ours. It rests upon the assumption that Congress can
be trusted.
With respect to the leak which found its way to Sam Donald-
son-you know, I think I can certainly say to you that that didn't
come from Congress. I don't believe anybody has suggested that it
did. It must have come from some other source. I am quite abso-
lutely sure in my mind that it did not come from Congress.
This committee has been privy to information which has not
been leaked until much later and then-much, much later than
the time when it was made available to this committee on several
instances, and members of this committee will recall some of those
instances.
- Now, I should like to say as Speaker, that if it ever were to come
to my attention that any Member or staff person of this committee
had in violation of his or her oath leaked information, then I would
ask that person to resign from the committee. This is not the kind
of a committee that the Speaker has nothing to say about. This is
the kind of committee on which the Speaker does have something
to say as to personnel.
I think all of you would expect that. If there were any reason to
believe that any member of this committee had violated the sacred
oath which is concomitant with accepting membership on the com-
mittee, then that person should not expect to serve on this commit-
tee.
I just don't believe that has happened. I don't think the House
Committee has leaked information. We need to be very careful
about personnel, people whom we hire on both sides to serve on
this committee. We owe that obligation, not to the Executive
Branch per se but to the United States and to our oath of office.
I would recall an instance which Mr. Livingston may be as cogni-
zant of as I am. I was not in the Congress at that time though I am
sure some of you think I have been here that long. During World
War II, knowledge of the atomic arrangements, the tests, and the
experimentation was held by a very small number of people.
Sam Rayburn and the Chairman of the Appropriations Commit-
tee knew of it, and they asked for the money quite frankly saying
to the committee, we cannot tell you what this is for, but we think
it may end the war sooner. That is all they knew. They provided
the money based upon that information.
I think Congress can keep confidences. If we cannot, we don't de-
serve to be here.
Mr. STOKES. Thank you, Mr. Chairman.
Chairman McHUGH. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman, and I have so much to ask
and so little time it is an occupational hazard though. But apropos
of your last remarks, Mr. Speaker, let me quote to you from No-
vember 14, 1985, Washington Post, an article by Daniel Shorr, "In
1975 the CIA support of the anti-communist faction in Angola, also
a Kissinger Project, was disclosed after it became an issue in the
House Foreign Affairs Committee. The late Representative Leo
Ryan, a member of that committee, told me in an interview at that
time that he could condone such .a leak if it was the only way to
block an ill-conceived operation."
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Now, I suggest to you that was not unique with Mr. Ryan, and
citing chapter and verse the other day we had a briefing and I
don't, I won't tell you what the substance of the briefing was but
March 23, immediately thereafter, p e 7 of the Newsweek Maga-
zine, covert help for Corey Aquino. The Agency will add about a
dozen agents to its 115 member station in Manilla, et cetera, et
cetera, et cetera.
Now, the instances of dangerous leaks-and I don't say they are
from Congress but I say that this Congress has a problem that it
ought to consider at least equal to the problem of inadequate dis-
semination of secret information, and that is the leak. We cannot
keep a secret, and a democracy is indeed in peril in a dangerous
world if we cannot keep a secret.
There are many instances here of enormous violations. Let me
read to you from the Tower Commission report.
The obsession with secrecy and preoccupation with leaks threaten to paralyze the
government in its handling of covert operations. Unfortunately, the concern is not
misplaced. The selective leak has become a principal means of waging bureaucratic
warfare. Opponents of an operation kill it with a leak. Supporters seek to build sup-
port through the same means.
We have witnessed over the past years a significant deterioration in the integrity
of process. Rather than a means to obtain results more satisfactory than the posi-
tion of any of the individual departments, it has frequently become something to be
manipulated, to reach a specific outcome. The leak becomes a primary instrument
in that process.
Et cetera, et cetera.
Now, I asked Richard Helms, a former Director of Central Intel-
ligence, for comment on this bill. Let me read you one thing he
says and then I will ask for your comment and beg your indul-
gence.
This bill proposes to tighten up certain reporting requirements on new covert ac-
tions undertaken by the Central Intelligence Agency. In so doing it demands that
Presidential findings be in writing and that a copy of the written fording be fur-
nished to certain Members of Congress and to the Vice President, Secretaries of
State and Defense, and the Director of Central Intelligence.
At the rate written documents of the Executive Branch appear in the newspapers
these days, I would have thought that this requirement almost constitutes a guaran-
tee that no action would long remain covert. When a written finding is sent to a
Senator, a Congressman or a Cabinet officer, how many individuals on their staffs
actually see this document? Quite a few I would surmise. Put another way, this leg-
islation would further insure that with the inability of the Executive and Legisla-
tive Branches to identify leakers, covert action as an option in support of U.S. for-
eign policy is doomed.
This is not necessarily because future presidents and directors would be unwilling
to take the chance but because the experienced officers who must carry out such
operations would not wish to become involved in what they would inevitably regard
as a no-win situation.
Then Mr. Speaker, he mentions a colleague of ours in the other
body who shall be nameless, former chairman of the Senate Select
Committee on Intelligence
Mr. WRIGHT. I don t have the faintest idea who that would be. I
appreciate your keeping his identity secret.
Mr. HYDE. Good, I think we have-we will try to keep that
covert.
He was quoted in the Washington Post and many other media
including the Jerusalem Post as having exposed during a speech in
Florida an alleged American intelligence operation in Israel.
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Now, sure, we have a problem. Congress is entitled to know. We
cannot exercise oversight unless the Executive has confidence in us
and unless we have confidence in them, and there is a problem.
I am not sure, in fact I am sure this is not the solution to the
problem, but we ought to address ourselves to security, to punish-
ing people who leak and devising ways to find out what the leaks
are and who the leakers are.
I would ask for your comment.
Mr. WRiGfrr. Mr. Hyde, I think you raise a very interesting ques-
tion. There has to be a distinction between. policy, on the one hand,
and the means employed to carry out that policy, on the other
hand. As to the precise and specific means of carrying out covert
policy, I suppose Congress would be foolish to expect that we
should be told such minutia and detail as the identity of each of
our agents, whom he is contacting, when he is going to take a
given course of action, and where it will occur. That would be ridic-
ulous obviously.
But at the outset, at the inception of a policy creation, I believe
the law anticipates-and I think the Constitution anticipates-that
Congress needs to have a voice. I don't believe either the law or the
Constitution has suggested that a monolithic decision made in the
White House would get us into a war, rather the Congress should
have the opportunity and does have the responsibility to make a
judgment as to whether we get America into a war.
Now you make reference to an article by Daniel Shorr in the
Washington Post in November of 1985 that involves what I would
suppose to be a policy determination with respect to Angola.
Perhaps you ti nd I might agree on that matter so far as policy is
concerned. I don't know whether we do or not, but the point is that
there is a right for Congress to know that a viven policy is being
carried out and the Congress should have the opportunity to con-
sult.
Now as to how it is carried out obviously Congress has no reason-
able expectation of being told that in detail. But let me offer a
couple of other suggestions, times in which appointed people in the
Executive Branch-not elected personnel, not people directly re-
sponsible to the American public-have made judgments and
launched activities that would be unlawful, that would be contrary
to our treaty agreements with other nations, and that quite prob-
ably would not have been supported by the Congress as a whole.
And in the mid-1950s, perhaps 1954, I am not certain what year,
I think my recollection would tell me 1953 or 1954, the CIA con-
ceived and carried out an assassination effort involving a man
named Jacobo Arbenz Guzman in Guatemala. Jacobo Arbenz I
guess was a Marxist, I don't know just how to define his political
philosophy. He was not a great friend of the United States. It
might have been in our best interests that someone else be elected
rather than he. But an election was going on, as I recall, and we
have no right to go into another country in my judgment and cer-
tainly no person in the Executive Branch has the unilateral right
to decide who in another country should be allowed to live and who
should be assassinated.
In 1971 if memory serves, in that time frame, in that era, a deci-
sion was made unilaterally in the covert sanctums of the CIA that
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we should go into Chile where an elected president was serving
peacefully and not attempting to consolidate his gain to my knowl-
edge with the use of armed militia nor attempting to call off regu-
lar or free elections. He was I suppose a Marxist actually, I don't
know that he was a Marxist, certainly he was a socialist--
Mr. HYDE. A liberal anyway.
Mr. WRIGHT. Well, I think that is a mild description.
Mr. HYDE. Yes.
Mr. WRIGHT. In any event he was probably not the person that
the United States in general would have liked to see as President
of Chile, but he had been elected President of Chile. Chileans had
voted for him and I am persuaded by people who think they know
what was going on down there that if left alone, he would have
been rejected at the polls and someone more moderate would have
been elected, if we would have let it alone. -
The CIA conceived a plot to destabilize-destabilize-the govern-
ment of Chile. Now there is a euphemism for you. We decided-or
rather someone in the sanctums of the CIA decided that he had the
right to go down and destabilize the government of an elected
president in Chile. That has created bad will for our country. It has
confused the clarity of our policy. It has contributed to criticism of
the United States subsequently. And it ushered in a militaristic
regime in Chile which still to this day prevails.
It wasn't necessary for us, in my judgment, to have undermined
that elected government in Chile. Congress didn't decide to do that.
Congress wasn't given any choice.
Mr. HYDE. Is your point, Mr. Speaker, we should leak some
things and some we shouldn't?
Mr. WRIGHT. No, no.
Mr. HYDE. I am asking you how to deal with the problem of
leaks.
Mr. WRIGHT. Henry, I think you know.
Mr. HYDE. Not a listing of alleged sins which I say are very much
in dispute, of the CIA. How do we deal with congressional leaks
was really my question. I should have put it more directly.
Mr. WRIGHT. Henry, I think you know the answer to that. Of
course you know the answer is not that we who are privy to- this
classified information should presume any right to leak it. Did I
not lust say that we have no right to do that? Of course I said that.
Mr. HYDE. Right.
Mr. WRIGHT. Of course we don't.
Mr. HYDE. We have no right to leak, but the question is what are
we going to do about it and are there any legislative suggestions
that perhaps you have that would-- .
Mr. WRIGHT. Henry, what I am suggesting is that the Congress
does have a right and a responsibility through the exercise of its
orderly procedures to know what is going on.
Mr. HYDE. I stipulate that. I agree with that.
Chairman MCHUGH. Mr. Kastenmeier.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
I would like to congratulate the Speaker on his presentation as
well, and his response to questions. -
I must say myself that as far as the House Committee on Intelli-
gence is concerned, I am not sure that there is any example we
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know of where the Committee has been proven to be the source of
leaks. We have enormous numbers of leaks nationally and as a
matter of fact, the Acting Director of Central Intelligence recently
suggested to us that the principal source of leaks is not the Con-
gress-not the Congress-but Mr. Speaker, I would like to talk
about a different question, and it is a larger question that is per-
haps I think aggravated by the tension that has existed between
the Administration and the Congress in the last few years. Particu-
larly, although it could happen anytime, and it is a situation which
you have related as producing a situation where the President in
his own mind can elect to comply with the law or not comply with
the law.
As a matter of fact, I think whether it is under the War Powers
Act or the Oversight Act, the two cases you cite did not involve any
prior consultation, maybe minimal notice but certainly not consul-
tation. There has been an erosion of the relationship between the
Executive Branch and the Congress in terms of more serious activi-
ties done in this nation's name.
Would you not agree that what is recommended here is indeed
modest? Ten years ago, for example, when some of the actions you
have just referred to were reviewed, there were those who asked
whether we ought to permit covert action, whether we ought to
forbid it or whether we ought to have some mechanism for congres-
sional approval or much more stringent prior notification. So what
this is, is it not merely a restatement of existing law to make it
more efficacious and remove ambiguities so that we can proceed
with a sort of new understanding of the relationship between the
Congress and the White House?
Mr. WRIGHT. I have that feeling, of course, Mr. Kastenmeier. I do
believe that what is proposed in this legislation is simply a tighten-
ing up of the statute in order to carry out its original intent. I am
aware of the apprehension that may have been expressed about
putting it in writing, putting in writing the finding. Conceivably
you may want to think in terms of how broadly that is to be inter-
ppreted or how widely disseminated any such written finding should
be. But I think it is within the scope of this committee to handle
that kind of determination.
I can find nothing in this proposed amendment to the statute
that violates the initial purpose of the statute. It seems to me that
it clarifies and carries it out. That is my interpretation of it.
Mr. KASTENMEIER. Thank you, Mr. Speaker.
Chairman McHUGH. Mr. Beilenson?
Mr. BEILENSON. I don't really have any questions of our esteemed
Speaker. As one of the co-sponsors of this legislation, I, too, along
with many of our colleagues, found his comments very cogent, very
compelling.
First of all, all of us agree with a couple of points that our friend
from Illinois, Mr. Hyde, made. We.have got to improve our security
and do our very best to find out who leaks information, and to
punish those people.
But coming back to the bill which is before us, its intention basi-
cally is to carry out the intention of the existing law. If you are
worried about leaks, then you have that exact problem, of course,
as Mr. Hyde pointed out.
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19
You have that exact problem to a certain extent under existing
law. A recent study by the Intelligence Committee of the other
House found out that in 147 recent occasions of information having
been leaked, the attributable sources in all but 12 of those cases
was the Administration, someone in the Administration rather
than someone in the Congress.
There clearly is a problem, and the larger problem clearly has to
do with the Executive Branch of the Government, for all kinds of
obvious reasons, most obvious is there are very few individuals,
both staff and members, Senate and House, who know these se-
crets, and in most instances, there are many dozens, hundreds,
sometimes thousands of people who know these self-same secrets
which some of our colleagues are urging us to deny to even eight of
the most trusted Members of the Congress, and there is a lot of
competition between these Executive Branch Departments, some of
whom don't believe that the CIA should be tasked with some par-
ticular operation or not.
Often, people within the CIA itself think that they have been
asked to do something foolish or dangerous, or counterproductive
potentially, and if you ask any good media person; if that person
told you the truth, he would tell you in virtually every instance
that his source was somebody from the Executive Branch, not from
the Congress of the United States.
Mr. HYDE. Would the gentleman yield for just a brief question?
You mentioned a study by the Senate Intelligence Committee
that found 100-some leaks came from the Administration.
Mr. BEILENSON. In the articles themselves, the information was
attributed to someone in the Executive Branch of the Government.
Mr. HYDE. Who is the chairman of that Senate Select Commit-
tee?
Mr. BEILEN$ON. I can't remember his name, but he was a former
chairman. It may have even been the person that the gentleman
was speaking of earlier, I am not sure.
We are concerned about possible risks, loss of life. All of the
members of this committee are aware of certain operations that
are carried out that we cannot even speak of, where there is con-
tinual potential risk to people's lives.
Let me just say one more thing, if I may, Mr. Chairman, there is
a particular question which perhaps we could speak at some great-
er length about. The hardest questions of all were those which
were raised by Mr. Hyde, Admiral Turner and others, and hostage
rescue situations, where you are trying to save lives. Those are sit-
uations which tend to be short-lived, you can't afford any kind of
talking about it whatsoever.
And at the same time, if I may be frank, from this member's
point of view, those may be the kinds of operations where some of
us feel that we don't really need to know. They are not policy un-
dertakings, covert operation in a larger term, and it seems to me
that in such kinds of cases, perhaps there is no need for the-Con-
gress to know, even if it has a right to know.
It may well be that we might perhaps think of making some ex-
ception for those kinds of rescue operations. I do not know as a
policy matter that we need to know. At least beforehand, anyway,
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and that might solve a lot of people's problems with the most risky
of these potential kinds of situations.
It might not offend some of us to find out about those things
until after they are over, but they may be a useful avenue for us to
explore, Mr. Chairman.
Chairman McHUGH. Thank you.
Mrs. Kennelly?
Mrs. KENNELLY. Thank you, Mr. Speaker, for being with us this
morning, and for your statements. I want to make my comments as
a new member, and thank you, Mr. Speaker, for appointing me.
I found in my life that sometimes you say things so often they
become a truism. Members can't keep secrets, Congress can't keep
secrets. I see people who can keep secrets to my left. Because this
was said so many times, it seems to me that now we have private
individuals, retired military members, unelected officials, and Lieu-
tenant Colonels running many things.
I appreciate your being here, because it shows the support you
have for this committee, for the oversight charge of this Congress.
Mr. Speaker, do you think individual Congressmen and women
can keep secrets?
Mr. WRIGHT. Women, of course, surely Congressmen and Con-
gresswomen can keep secrets. Perhaps some of us cannot. We are
like people. Those who cannot keep secrets have no business on
this committee.
Mrs. KENNELLY. As a new member, I am in a wonderful position
of a new beginning, and hopefully this bill will be a new beginning.
Chairman McHUGH. Mr. Speaker, we all appreciate your being
with us this morning.
Our next witness is the distinguished Minority Leader of the
House of Representatives, Robert Michel of Illinois.
Mr. Michel, like the Speaker before him, has been an ex officio
member of the Intelligence Committee and has added considerably
to our deliberations, and functions, and we are very grateful for his
presence here this morning.
STATEMENT OF HON. ROBERT H. MICHEL, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. MICHEL. Well, thank you, Mr. Chairman, and my colleagues
on the committee, as you indicated, I have been very privileged to
serve as an ex officio member of the committee. My only regret is,
because of our duties otherwise, we are limited in our attendance;
but I would like to address myself, if I might, to the bill, H.R. 1013,
introduced by the chairman, which would amend the National Se-
curity Act of 1947, and section 662 of the Foreign Assistance Act of
1961-the Hughes-Ryan amendment.
When the chairman introduced his bill on February 4th of this
year, he said, and I think it bears well to have it read here:
With these amendments, the scheme for covert action reporting will be quite
clear. First, in almost all cases, prior notice must be given to the Intelligence Com-
mittees; second, in rare cases, where the President believes there is an unusual
de?ree of sensitivity, prior notice must be given, but it may be given to the leader-
ship group set out in section 501; and third, in even rarer cases, where the President
must react with speed because of an immediate threat to our national security,
notice must be deferred for a maximum of 48 hours.
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21
I am not a constitutional scholar. But I have been a Member of
the Congress for over 30 years. I have seen the Legislative Branch
and the Executive Branch come to loggerheads on constitutional
prerogatives over and over again.
But nowhere has the issue been more forcefully joined than in
the language of the amendment I have just read. And nowhere has
the issue been more serious. What we are dealing with here is a
fundamental question of foreign policy.
If I may judge from the remarks made by the chairman during
that same Floor speech in February, his amendment has its origins
in the controversy surrounding the Iran-contra arms affair and the
notification issue.
I will not comment on the facts of the Iran-contra affair because
we already have two Congressional committees working full time
to uncover those facts. And while I have read with interest varying
interpretations of the President's decision not to notify Congress,
my appearance here today is not concerned with the legal and his-
torical questions of that issue.
I would rather talk about the future than the past, about the
dangers I see to our Nation if the chairman's amendment ever be-
comes law. Legislation proposed in the heat of political passions,
with long-range questions of national security overshadowed by
short-term response to current controversies, is not Congress acting
at its best.
I fully understand the motivation that led to this proposed legis-
lation. I understand the frustration that supporters of the legisla-
tion might feel given their perceptions of the events surrounding
the Iran-contra affair. But a sense of frustration, justified or un-
justified, is not a sufficient cause to create legislation like this.
In dealing with intelligence oversight, the Congress has never in-
tended to confront an American President with language that is
the functional equivalent of a foreign policy strait jacket.
There is an old rule of thumb about problem-solving. It says that
we should never try to seek more accuracy in our answers than the
facts of the question permit. In short, we should never sacrifice the
good to the best. We should never try to find a perfect formula for
states of affairs that do not, by their very nature, allow perfection.
James Madison, in Federalist Paper No. 48, described the possi-
bility of the Legislative Branch encroaching on the legitimate func-
tions of the other Branches. Speaking of the Legislative Branch, he
wrote:
Its constitutional powers being at once more extensive and less susceptible of pre-
cise limits, it can with the greater facility, mask under complicated and indirect
measures, the encroachments which it makes on the coordinate Departments.
To put the matter in the less eloquent but perhaps more emphat-
ic language of our own time, Congress can pass legislation whose
stated aim is doing good for all concerned, but whose effect will be
encroachment on the rights of the other branches of government.
The Constitution of the United States made it clear from the be-
ginning that there could be no clear-cut, easy-answer, ready-made
formulation to do away with the inherent tension between two
Branches of Government, each with legitimate powers.
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They knew that sometimes we would have to live in that gray,
fog-shrouded area of the political landscape between the Executive
and the Legislative powers, where clarity isn't always possible.
If you feel, Mr. Chairman, as you said in your statement, that
"the bond of mutual respect between the committee and the CIA
has been broken," the worst way to reestablish that old bond of
trust is by forging new chains of legislative language.
We should not fool ourselves that we can solve these complex
problems simply by writing new language. I wish it were that
simple. But it is not. Under a system of government like ours, we
have to take risks. Democracy itself is a risk. There are no guaran-
tees.
But one risk we cannot take: We cannot risk having our adver-
saries-and indeed, our friends-perceive an American President
as not being able to move quickly and decisively because Congress
has restricted his flexibility.
I stress the word "perceive." There are learned counselors and
expert witnesses on both sides of this issue. We who are not consti-
tutional lawyers or experts can only listen and try to make judg-
ments.
But whatever the constitutional issues involved, if this legislation
became law, the perception of a weakened Presidency would be
universal. No amount of convoluted arguments about what the leg-
islation means could erase the impression that the Congress in-
tends to limit a President's flexibility.
This may not be your intention. But it will be the perception.
And in politics, including geopolitics, perception is all-important.
I can think of no worse scenario than one in which a Soviet
leader meets with an American President-any American Presi-
dent-believing that our President has been stripped of the free-
dom to act swiftly and with flexibility.
Again, I don't question the motivation behind this proposal.
What I question is the wisdom of Congress, acting in the emotion of
this Iran-contra affair, placing restrictions upon the very institu-
tion of the Presidency itself, restrictions that are, in my view, con-
stitutionally dubious and strategically dangerous.
Let me turn for a moment to another aspect of the issue. It may
seem peripheral, but I believe it is important in the overall context
of the debate over Congressional oversight.
There are those who say no Administration can afford to trust
the Congress with secret information for fear it will be leaked. The
Tower Commission report addressed this point among its recom-
mendations. What the report had to say about the problem of possi-
ble "leaks" is worth quoting in full:
There is a natural tension between the desire for secrecy and the need to consult
Congress on covert operations. Presidents seem to become increasingly concerned
about lesks of classified information as their Administrations progress. They blame
Congress disproportionately. Various Cabinet officials from prior Administrations
indicated to the Board that they believe Congress bears no more blame than the
Executive Branch.
However, the' numbers of Members and staff involved in reviewing covert activi-
ties is large; it provides cause for concern and a convenient excuse for Presidents to
avoid Congressional consultation.
We recommend that Congress consider replacing the existing Intelligence Com-
mittees of tile respective Houses with a new joint committee with a restricted staff
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23
to oversee the intelligence community, patterned after the Joint Committee on
Atomic Energy that existed until the mid-1970s.
I am glad to see that the Tower Commission did not engage in
"Congress-bashing" when it came to discussing leaks of classified
information.
But it is worth repeating that the report did say the "number of
Members and staff involved in reviewing covert activities is large;
it provides cause for concern-"
I think it is a very fair and accurate assessment of the situation.
Our distinguished colleague, Mr. Hyde, has proposed legislation
that there be one joint Congressional. Intelligence Committee, a
proposal I support. I think that we should embrace Mr. Hyde's pro-
posal since it reflects the concerns of many, including the members
of the Tower Commission.
In conclusion, my view is that intelligence oversight can work, as
it has in the past, when there is the give-and-take of debate, the
freedom for a President to maneuver, along with the acknowledg-
ment, in deed as well as word, of the legitimate right of Congress to
be properly informed in order to perform its oversight functions.
I think the legislation we already have on the books reflects a
wise, prudent compromise to a complex problem. The legislation
ain't broke. So let's not fix it.
Very briefly, on that 48-hour limitation, I am thinking of the dif-
ficulty involved there, depending upon who those members are that
we want to be notifying, and how many. Congress is away on week-
ends all so frequently, and then when we are on break, whether it
is Lincoln's birthday, the Fourth of July, or in August or whenever,
the Congress adjourns, and we are spread to the four winds all
around the globe, and you are going to require within 48 hours no-
tification of individual members on a secure basis?
We could be in Timbuktu. Even today, we are recognizing in the
Soviet Union, we have a real serious problem for the Secretary of
State getting back to his government.
Now, that has got to be a very serious problem for us. Then, the
very fact of all that has developed by way of communication inter-
cepts. Yes, I have tried to be very, very careful about some of the
sensitive information that I received, to make absolutely sure that
I am on some secure line, but how accessible are those secure lines
to those of us who may not be right in our offices where the facili-
ties are there for us to use?
Finally, there is the deletion of part of the existing law which
has to do specifically, Mr. Chairman, with other than activities in-
tended solely for obtaining necessary intelligence. There is not
even an exception for intelligence-gathering.
Now, let's suppose we have an agent or a couple or whatever,
someplace abroad, and the President says now, we would like to
plant a seed someplace, if you are given the opportunity. I am not
altogether sure under the language of the chairman's bill, whether
or not the President at that point is supposed to be advising Mem-
bers of Congress, this is what he is proposing out there, and when
is the time?
The agent may be behind the screen that we are all too familiar
with today. He is given a commission to do a certain thing prospec-
tively, depending upon some other act out there, and it is certainly
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within the President's right, to maintain the security of our coun-
try, to have those eyes and ears out there, to do certain things for
intelligence-gathering, I just don't see-you know, when you wipe
out that exception again in your legislation, we have got a problem.
I am reminded in this growing controversy here, you know, I re-
member, and no reflection at all upon our own individual Members
of Congress, with respect to how we are given to leaking informa-
tion, but I can remember several Speakers of the past who re-
frained from appointing certain members of the House of Repre-
sentatives to certain committees because of those Speakers' doubts
about those members' abilities, whatever, to serve on those commit-
tees.
Now, they may very well, when we take the oath of office, sup-
port and defend the Constitution, but I will tell you, there is noth-
ing in that oath under those circumstances that forecloses possible
leaks of very sensitive information, and then this issue of covert
versus overt operations, I dare say there are some members of the
House of Representatives of the Congress who frankly have a per-
sonal bias against covert operations, period.
I happen to think they are absolutely essential, even in a free
society, and in my own responsibility as leader, would never, never
appoint a member to this committee who frankly had that personal
bias against covert operations, because I don't think that would
serve the system well, or the House of Representatives well, so
those are the thoughts I have.
I would be happy to subject myself to questions.
[The statement of Mr. Michel follows:]
STATEMENT OF CONGRESSMAN BOB MICHEL
Mr. Chairman, I thank you for this opportunity to appear before the House Per-
manent Select Committee on Intelligence. For 7 years I have been an Ex-Officio
member of the Committee. During that time I have had the chance to see at first
hand the professionalism of the staff and the dedication of the members. I want to
take this opportunity to pay public tribute to the fine work you have done and con-
tinue to do.
I appear before you today to discuss some aspects of the Bill H.R. 1013, introduced
by the Chairman, which would amend the National Security Act of 1947 and Sec-
tion 662 of the Foreign Assistance Act of 1961-the Hughes-Ryan amendment.
Let me quote from the Chairman's own remarks when he introduced the Bill on
February 4th of this year:
"With these amendments, the scheme for covert action reporting will be quite
clear. First, in almost all cases, prior notice must be given to the intelligence com-
mittees; second, in rare cases, where the President believes there is an unusual
degree of sensitivity, prior notice must be given, but it may be given to the leader-
ship group set out in section 501; and third, in even rarer cases, where the President
must react with speed because of an immediate threat to our national security,
notice may be deferred for a maximum of 48 hours."
I am not a constitutional scholar. But I have been a member of the Congress for
over 30 years. I have seen the Legislative Branch and the Executive Branch come to
loggerheads on constitutional prerogatives over and over again. But nowhere has
the issue been more forcefully joined than in the language of the amendment I have
just read. And nowhere has the issue been more serious. What we are dealing with
here is a fundamental question of foreign policy.
If I may judge from the remarks made by the Chairman during that same floor
speech in February, his amendment has its origins in the controversy surrounding
the Iran-Contra arms affair and the notification issue.
I will not comment on the facts of Iran-Contra affair because we already have 2
Congressional committees working full time to uncover those facts. And while I
have read with interest varying interpretations of the President's decision not to
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25
notify Congress, my appearance here today is not concerned with the legal and his-
torical questions of that issue.
I would rather talk about the future than the past, about the dangers I see to our
nation if the Chairman's amendment ever becomes law. Legislation proposed in the
heat of political passions, with long-range questions of national security overshad-
owed by short-term responses to current controversies, is not Congress acting at its
best.
I fully understand the motivation that led to this proposed legislation. I under-
stand the frustration that supporters of the legislation might feel given their per-
ception of the events surrounding the Iran-Contra affair.
But a sense of frustration, justified or unjustified, is not a sufficient cause to
create legislation like this.
In dealing with intelligence oversight, the Congress has never intended to con-
front an American president with language that is the functional equivalent of a
foreign policy strait-jacket.
There is an old rule of thumb about problem-solving. It says that we should never
try to seek more accuracy in our answers than the facts of the question permit.
In short, we should never sacrifice the good to the best. We should never try to
find a perfect formula for states of affairs that do not, by their very nature, allow
perfection.
James Madison, in Federalist Paper No. 48, described the possibility of the legisla-
tive branch encroaching on the legitimate functions of the other branches. Speaking
of the legislative branch, he wrote:
"Its constitutional powers being at once more extensive and less susceptible of
precise limits, it can with the greater facility, mask under complicated and indirect
measures, the encroachments which it makes on the co-ordinate departments."
To put the matter in the less eloquent, but perhaps more emphatic language of
our own time, Congress can pass legislation whose stated aim is doing good for all
concerned, but whose effect will be encroachment on the rights of the other
branches of government.
The Constitution of the United States made it clear from the beginning that there
could be no clear-cut, easy-answer, ready-made formulation to do away with the in-
herent tension between 2 branches of government, each with legitimate powers.
They knew that sometimes we would have to live in that gray, fog-shrouded area
of the political landscape between the Executive and the Legislative powers, where
clarity isn't always possible.
If you feel, Mr. Chairman, as you said in your statement, that ". . the bond of
mutual respect between the committee and the CIA ... has been broken ...... the
worst way to re-establish that old bond of trust is by forging new chains of legisla-
tive
We language.
should not fool ourselves that we can solve these complex problems simply by
writing new language.
I wish it were that simple. But it is not. Under a system of government like ours,
we have to take risks. Democracy itself is a risk. There are no guarantees.
But one risk we cannot take: We cannot risk having our adversaries-and, indeed,
our friends-perceive an American president as not being able to move quickly and
decisively because Congress has restricted his flexibility.
I stress the word "perceive". There are learned counselors and expert witnesses
on both sides of this issue. We who are not constitutional lawyers or experts can
only listen and try to make judgments.
But whatever the constitutional issues involved, if this legislation became law, the
perception of a weakened presidency would be universal. No amount of convoluted
arguments about what the legislation means could erase the impression that the
Congress intends to limit a president's flexibility. This may not be your intention.
But it will be the perception. And in politics-including geopolitics-perception is
all important.
I can think of no worse scenario than one in which a Soviet leader meets with an
American president-an American president-believing that our president has
been stripped of the freedom to act swiftly and with flexibility.
Again, don't question the motivation behind this proposal. What I question is
the wisdom of Congress, acting in the emotion of this Iran-Contra affair, placing re-
strictions upon the ve institution of the presidency itself, restrictions that are in
my view, constitutionally dubious and stra call
Let me turn for a moment to another aspect y dangerous.
oral
of the issue. It may but I believe it is important in the over-all context of the debate over Co peripheral,
oversight.
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There are those who say no administration can afford to trust the Congress with
secret information for fear it will be leaked.
The Tower Commission Report addressed this point among its recommendations.
What the Report had to say about the problem of possible "leaks" is worth quoting
in full:
"There is a natural tension between the desire for secrecy and the need to consult
Congress on covert operations. Presidents seem to become increasingly concerned
about leaks of classified information as their administrations progress. They blame
Congress disproportionately. Various cabinet officials from prior administations in-
dicated to the Board that they believe Congress bears no more blame than the Exec-
utive Branch.
"However, the numbers of Members and staff involved in reviewing covert activi-
ties is large; it provides cause for concern and a convenient excuse for presidents to
avoid Congressional-consultation.
"We recommend that Congress consider replacing the existing Intelligence Com-
mittees of the respective Houses with a new joint committee with a restricted staff
to oversee the intelligence community, patterned after the Joint Committee on
Atomic Energy that existed until the mid-1970's."
I am glad to see that the Tower Commission did not engage in "Congress-bashing"
when it came to discussing leaks of classified information.
But it is worth repeating that the Report did say the "number of Members and
staff involved in reviewing covert activities is large; it provides cause for con-
cern . "
I think that it is a very fair and accurate assessment of the situation.
Our distinguished colleague, Mr. Hyde, has proposed legislation that there be one
joint Congressional Intelligence Committee, a proposal I support. I think that we
should embrace Mr. Hyde's proposal since. it reflects the concerns of many, includ-
ing the members of the Tower Commission.
In conclusion, my view is that intelligence oversight can work-as it has in the
past-when there is the give-and-take of debate, the freedom for a president to ma-
neuver, along with the acknowledgment, in deed as well as word, of the legitimate
right of Congress to be properly informed in order to perform its oversight func-
tions.
I think the legislation we already have on the books reflects a wise, prudent com-
promise to a complex problem. The legislation ain't broke. So let's not fix it.
Chairman McHUGH. Thank you very much, Mr. Michel, for your
statement.
First, I think it is important to stress, as you did, that we should
look at this issue dispassionately and not in any sense of frustra-
tion, and I hope that is the manner in which the committee will
proceed.
Secondly, it is important to distinguish between collection of in-
telligence on the one hand, and covert operations on the other, and
I think that this bill clearly is directed to covert operations.
I would point out that in President Reagan's Executive Order of
December 1981, he defined covert operations as those "conducted in
support of national foreign policy objectives abroad which are
planned and executed so that the role of the United States is not
approved or acknowledged publicly, but which are not intended to
influence U.S. political processes, public opinion, policies or
media," and this is the part that is important, `and do not include
diplomatic activity or the collection and production of intelligence
or related support functions."
Covert operations to which this bill is directed does not cover the
collection of intelligence, which we all agree should not be subject
to prior notification to Congress.
Mr. MICHEL. If perchance, this legislation should get to the
House Floor, and then in the legislative history, that would be a
very, very important point that would have to be discussed because
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the language deleted, automatically wipes out that exception that
we at this day have in the law specifically.
Chairman McHUGH. Well, I don't think that is correct, but we
can certainly make it clear in the legislative history that we are
not intending to influence or affect collection of intelligence.
You indicated that you would like to look forward in terms of
this proposal, and its impact. That is an important thing for us to
do, but it is not irrelevant for us to consider the Iran arms transac-
tion, because that is a real-life case.
It reflected not just what happened in that particular instance,
but it reflects what we perceive to be an attitude with this particu-
lar Administration with respect to Congressional oversight general-
ly.
We may be wrong, but nonetheless, the perception is there. As
others will testify, there is an argument that you should not try to
write something into law to cover Congressional oversight and noti-
fication, but rather, it should be based on trust and comity, and I
agree with that so long as the trust exists, but as the Iran case
demonstrates, at least to some of us, there is a perception in the
Administration, on the part of some, that Congress can't be trust-
ed, or it is an inconvenience or an obstacle rather than a help.
And I would ask you with respect to that case, whether or not
the President complied with existing law, which requires in the
case where prior notice is not given, that the President shall notify
the Intelligence Committees in a timely fashion.
The President signed his finding authorizing this operation on
January 17, 1986. We did not learn of this at any time from the
White House or from anyone else in the Administration, as was
mentioned earlier; we learned about it because it was disclosed in a
Middle East magazine.
Well, does that comply with existing law, never mind the propos-
al which is being made here today?
Mr. MICHEL. I am personally offended by the fact that I was left
out of the loop for so long, and I am certainly not going to apolo-
gize for my own Administration for having taken that tact, because
as you indicate, there are those of us who know how to keep a
secret, can be trusted with this country's security. There is an obli-
gation for a shared role and responsibility between the Executive
and Legislative Branches, and so on, but what I am saying, and I
am not altogether sure the system is wrong, some of the individ-
uals involved are victims of their own individual body chemistry,
what their feelings were vis-a-vis an Executive Branch versus Leg-
islative.
And so, I have a real reluctance to put that kind of, a strait-
jacket on some future President.
I would like to think no matter who he or she may be, and those
around them, that they will have learned certainly from this expe-
rience that that was not the appropriate way in which to conduct
that operation, certainly.
Chairman MCHUGH. I presume that if the President had notified
you of his plans to sell arms to Iran controversy, that you would
have expressed some reservation or objection to that?
Mr. MICHEL. There would certainly have been those of us who
would have reminded whomever at that time of some of the other
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commitments which were made to us for which we went out on the
line as a matter of principle with respect to our absolute prohibi-
tion of dealing with terrorists, period, you know.
And I must confess, that I had a very hard time assimilating
what had gone on.
Chairman McHUGH. Don't you think the Iran case in this con-
nection is a good example of why prior notification in most cases is
a benefit to the President as well as a right of the Congress?
Mr. MICHEL. I know we have left this rather ambiguous in the
past, by way of timely notification, and we have argued that point
on the Floor of the House any number of times, and it is going to
be open to various interpretations, depending upon who the indi-
vidual is, I guess.
And I would just-I am very reluctant to deny a President of the
future that kind of flexibility, trusting hopefully that whoever he
or she might be will have learned from this experience that that
was not in the spirit of the law, to have that long a gap between
the act and the notification of those of us who deserved some
heads-up on what was going on, because those of us who are really
active on that political cutting edge out there on a day-to-day basis
do have some good things to volunteer once in a while.
Chairman McHUGH. Thank you very much.
Mr. Livingston?
Mr. LIVINGS ON. I want to commend you on an outstanding state-
ment, and thank you for your input. I just want to concentrate on
your point about the amendment to section B of existing law.
In reading that specific exception, th.; words "other than activi-
ties intended solely for obtaining necessary intelligence" would be
struck, as I have pointed out, which would require that even the
most mundane obtaining of necessarily intelligence, and all of the
covert activities inherent in that activity, would be required to be
shared by the President and the Executive Department with vari-
ous Members of Congress, and in most cases, in advance rather
than 48 hours after the fact.
Is that your understanding, Mr. Michel?
Mr. MICHEL. Well, I always considered this to be a very impor-
tant exception that we had currently written into the law, and that
when we are about to wipe out very important exceptions, then I
have to ask why.
What is the reason for it?
Mr. LIVINGSTON. I totally agree with you. Even if it were the
most significant intelligence-gathering activities, it would seem
that this is not the type of thing that should be shared, and could
very well totally close down our capability to gather intelligence
around the world.
Mr. MICHEL. I am not the specialist here. We got a few behind us
here, Admiral Turner and Bill Colby, and there may be others that
can probably speak more directly to that, but I have a real problem
with that.
Mr. LIVINGSTON. Well; I thank you for your statement. I have no
further questions.
Chairman McHUGH. Thank you.
Mr. Stokes?
Mr. STOKES. Thank you very much, Mr. Chairman.
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Let me also commend our distinguished Minority Leader for his
appearance here this morning, and the excellent statement he has
given in support of his views.
On the statement that you made with reference to putting the
President in a foreign policy strait jacket, as the distinguished Mi-
nority Leader knows, the law already requires timely notice to the
Congress, so we are not saying that the President has to do some-
thing he is not already required to do under law.
Does the distinguished Minority Leader by any stretch of the
imagination say to us that notice after 14 months-it was August
of 1985 when the President first gave approval for the sale of the
arms by the Israelis to Iran-by any stretch of the imagination,
would the distinguished Minority Leader say that was timely
notice to the Congress?
Mr. MICHEL. That was not.
Mr. STOKES. I can say to you that in crafting this legislation, I
don't think either I or Ed Boland, the distinguished former chair-
man of this committee, one of the most distinguished members of
the House, and a gentleman who distinguished himself by chairing
this committee for six years, co-sponsor of this legislation, intends
in any way to tie the President's hands.
We respect the fact that the President has to make certain exi-
gent decisions, and must have latitude for that, but Ed Boland has
stated on several occasions that when they entered into the origi-
nal language on timely notice, that it was based upon mutual trust
between the Congress and the President, and it seems to me here
now that you would probably agree with me that we are confronted
with a situation where, because the President made a unilateral
decision on his part without the involvement of the Congress, we
are now in a situation where the President himself, as a conse-
quence of this action, has requested an Independent Prosecutor to
conduct a criminal investigation of this action.
He has requested both Houses of the Congress to investigate the
consequences of this action, and I think that the distinguished Mi-
nority Leader would agree with me that had he complied with the
law, say timely notice being somewhere within a 48-hour period, or -
if the law as proposed had been enacted, say 48 hours, and he had
come over to the Congress and said to our committee which you
have sat on now for 10 years, that he planned to do what he
planned to do; isn't it conceivable that some of us on that commit-
tee would have had enough common sense to say to him, "Mr.
President, this is bad. Go back to the drawing board and think
about this one again, Mr. President."
Don't.you think that would have happened?
Mr. MICHEL. I am not altogether sure it would have been the
President himself who would have come up, but at least someone
speaking on his behalf personally responsible, and there would
have been a significant reaction on our part, I think, maybe from
both sides of the aisle.
It would vary in degree. As I said and indicated, timely fashion is
open to interpretation. From my point of view, I felt offended that
it took that long before we were notified. Bearing in mind, I guess,
it was an operation that was somewhat far removed from the kind
of normal things we think of here. This whole hostage issue is one
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30
in more recent years that has come to the fore that we, a number
of years ago, when I first came to the'' Congress, I don't think
anyone gave any serious thought to what the problem might be for
us in respect to the hostage issue.
But in more recent years, the Carter Administration, and this
one, we have been caught up in things, and new developments
probably require a reassessment of how to deal with it. That was
part of the reason for the lengthy delay in notification, because it
took so long through intermediates to get the kind of contacts that
eventually were supposed to bear fruit, but as I said, I am troubled
by that long delay.
Mr. STORES. Thank you, Mr. Chairman.
Chairman McHUGH. Thank you.
Mr. Hyde?
Mr. HYDE. I want to congratulate you for a superb statement and
analysis of a very thorny problem, and I want to associate myself
with your sharp criticism of the Administration in not timely noti-
fying Congress.
The law is clear, and 14 months is not timely, and I think the
law in that sense was not observed, and I think that the Adminis-
tration is paying a political price for that, as every Administration
will when they do not observe the letter or the spirit of the law. I
would personally like to see timely fashion stay in there, and we
will define timely fashion, as we are doing now, by saying this
surely wasn't, and the Administration is paying a price for that.
In addition, by notifying Congress, you get some risk insurance
when something is high-risk, and doesn't go right, but that said,
and I firmly believe that, and I agree with the spirit of this legisla-
tion, but I sure don't agree with how it handles it. You all, except
Mrs. Kennelly, who was not on the committee, remember perfectly
well when the Secretary of State came into our committee and told
us of a very sensitive operation, and those were his words, and the
next day, it was in The Washington Post in detail.
There are people who say a life was probably lost on that disclo-
sure. Now, I can understand the White House and Mr. Casey being
concerned that the leaks come from his own agency, from the State
Department, from Capitol Hill where we are besieged by media
after every meeting, just for background, confirm what I have
heard from somebody else, I can understand the paranoia. The
leaks are legion, and I have so many of them here, and I don't like
to talk about them, because you give some legitimacy to the disclo-
sure, but the 48 hours is hog-tying a President in matters where we
ought to leave it at timely notice, and if they don't observe it, force
that political price to be paid.
Two more things. We are besieged by Spy scandals: the Kampiles
case where this employee sold a manual about a very highly sensi-
tive satellite, the Morrison case, the Walker case, the three Ma-
rines, et cetera, et cetera, and we are spending our energies trying
to disseminate more classified information instead of trying ad-
dress, at least in tandem with our concerns about notification,
some of these serious problems.
Permit me to digress to answer something that the Speaker said
t really deserves an answer, and in all fairness, he assailed the
CIA for conduct on two matters, one of which was Chile, and I just
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want to indulge the chairman by reading two paragraphs from a
book written by Mr. Colby, that is an excellent book on the CIA.
"Honorable Men, My Life in the CIA," by William Colby; and he
discusses that Chilean myth that we have heard for time immemo-
rial, how dirty the CIA was, and how we overthrew this democrat-
ically-elected leftist Allende.
Two points need to be made about the CIA's assistance during this period after
1970, and both are a contrast to the general impressions abroad about it.
The first is that CIA's help was to center political groups, not the right-wing ex-
tremists. Of the millions of dollars spent in Chile by CIA, the most prominent right-
wing group received some 38,000 during the track-two effort in 1970, and about
7,000 more during 1971 and none thereafter.
The second is that the 1973 coup was carried out by the Chilean military with no
participation by CIA. In fact, CIA sent clear instructions to its station in Santiago in
May and June 1973 to separate itself from any contact with the Chilean military, so
that it would not be misunderstood to have been involved in any coup action the
military might undertake.
The real thrust of CIA's program was to support the center political forces so they
could win the next elections and thus remove Allende through peaceful means.
This is going out over C-SPAN, and the record ought to be clear
that the CIA performed adequately in Chile. They made mistakes,
being human, but they are not to be assigned guilt for overthrow-
ing the great democrat Allende, because they didn't.
I thank the chairman for that time.
Chairman McHUGH. Mr. Kastenmeier?
Mr. KASTENMEIER. Thank you, Mr. Chairman.
I am glad to greet the Minority Leader here. On the point of 48
hours, I would think the committee would want to look at the time
in terms of whether 48 hours has some peculiar validity as a time
frame or something else.
I think that and other issues were appropriately raised by Mr.
Michel. I do take issue with him with the implication that some-
how those appointed to the committee should be predisposed to
support covert action.
I think that that is a basic fundamental difference I perhaps
have with the gentleman from Illinois. There are many who feel, in
the CIA and elsewhere, that, frankly, covert action has been sort of
the bane, the thing that has damaged the CIA over the years.
Granted, there have been effective, useful covert action programs
historically, and some that have been an embarrassment to this
country. Furthermore, the Intelligence Committee is concerned
with intelligence-gathering, and analysis, much of it highly techni-
cal, in terms of, let's say, 96, 98 percent of our budget, and our ef-
forts are in intelligence, intelligence-gathering, and covert action is
a small portion.
I would think that this is where we need critical review that is a
sort of dispassionate view, a second-guess, if you will, on the part of
the Congress, and that should not imply, as my friend, Mr. Hyde,
suggests, that those who might oppose certain initiatives are dis-
posed to leak those initiatives.
I don't think the connection is there. If I am disposed to oppose a
program, I feel I must be purer than Caesar's wife on that with re-
spect to possibly leaking anything about it.
Mr. HYDE. Would the gentleman yield?
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I hope I did not imply that opposition predisposed someone to
leaking. I don't believe that at all. I simply say there are isolated
instances where people really think it is a higher duty to leak a
program or a policy if they are against it, and I quoted one former
member, whom we all knew and admired, as having said that was
his duty, to leak a program, and there are others who feel that
way, and we know who they are.
Mr. KASTENMEIER. Those are members on other committees, but
I accept the Speaker's premise that those appointed to this commit-
tee, above all, are absolutely bound to confidence, whether we like
activities, support them or not.
I hope that we can be effective in ensuring that the confidence in
the committee isT ~''ustified by the House.
Chairman MCHUGH. Mr. Beilenson?
Mr. BEILENSON. Thank you, Mr. Chairman. I, too, enjoyed having
our good friend from Illinois, Mr. Michel, here with us today. He
has made some very useful points, and among them, the point you
made with respect to where one of these eight folks might be when
time for notification came around.
That is something we should perhaps take a look at. We might,
for example, limit it to require the notification only amongst those
eight members who are in the country or even in Washington,
D.C., or there can be somebody else you might notify in their stead,
or when you don't have access to a secure line.
The gentleman brings up some valid points. Maybe the Leader
might take some of his friends from Illinois overseas sometime, and
being called a month from now, calling him up and trying to
inform him of something the Soviet Union should not know about,
well, perhaps we could address that more carefully.
Mr. MICHEL. One other point, Tony. Our adversaries know who
the members are on this committee, and they know who the lead-
ers are, and when, at one given time, all these members are given
a simultaneous notification that something is up, that in itself is a
key and a tip-off to your adversary. That is another element in this
thing, and I just think, from a point of being extraordinarily care-
ful about how we tip our hand, that that ought to also be taken
into account.
Mr. BEILENSON. Thank you.
Let me go on for a moment, Mr. Chairman, and respond to a few
things that Mr. Michel said. If you believe, and I think you used
the word that legislation on the books that we have now is wise
legislation, then one would have to ask what is wrong with spelling
out the requirements a little bit, because as you and Mr. Hyde and
everybody quite properly feel, the timely notice requirements
didn't work in this particular case. Perhaps 48 hours is not the
cure-all, but somehow what we have got now is not quite adequate,
although we all believe that it is wise legislation in general; so,
let's struggle to find some way--
Mr. HYDE. Would my friend yield to me on that point?
Mr. BEiLENSON. Of course.
Mr. HYDE. The observation of the law was inadequate, not the
law. Every time the law is not obeyed, we don't need to change the
law, but better observance of the law.
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These hearings are moving us in that direction, but when you
start putting time limits on it, it gets to be micromanagement.
Mr. MICHEL. It is a bit embarrassing, frankly, for Henry and
myself, because it is our Administration that did not do what we
would have thought they should have been doing, but even with
that, we would take the strong position, not knowing who ongoing
Presidents might be, we want to be very careful.
Mr. BEILENSON. You want to lay down some explicit guidelines as
to what is timely for them. It is not enough to hope that some
future Administrations will remember, or will have learned, be-
cause in fact, we learned through history that people forget, and
the folks who are carrying out the policy, they may be in their
thirties, forties, and may not have been even around at the time of
the next crisis.
You talk to folks at home about the Second World War. The kids
in high school were not even around when the Vietnam War was
here. You have to keep reminding people, and to the extent that
you can usefully put something in legislation, you should do so.
With respect to a weakened Presidency, I don't think anybody is
suggesting we strip the President of his ability to act. We are con-
centrating on our right to be informed, as a coordinating branch of
the government.
In speaking about espionage cases, those in fact are cases which
are far more costly, far more destructive and damaging to our na-
tional interests probably than anything we are talking about.
We are talking not about those sorts of things or even intelli-
gence-gathering, but we are talking about policy matters, covert ac-
tions, and part of the problem-and I have probably exceeded my
five minutes-part of the problem one must say frankly is that the
main foreign policy initiatives of this particular Administration,
the so-called Reagan Doctrine, are initiatives that are designed in
such ways which are often funded or done through the Intelligence
Committees which cannot be openly debated on the Floor.
It leaves us all in a very difficult situation. The Congress has to
be part of this in one respect or another, but we can't debate it on
the Floor, talking about how much money we are spending, be-
cause it has all been given to us in this other form of covert action,
not because the President or the Administration wants to avoid
this kind of debate, but because he believes in these kinds of covert
actions.
It makes it difficult for us, because we have a part to play, and it
is difficult for us to play that part, because we are not allowed to
talk about any of these things, and they are in the paper, but we
can't talk about them.
Chairman MCHUGH. Mrs. Kennelly?
Mrs. KENNELLY. Mr. Michel, I am just curious I know some of
the things that were set up for the Speaker. Are you satisfied, with
the statute as written now, that you could be adequately notified,
that at all times contact would be made with you.
Is that mechanism set up presently under the statute as written
now?
Mr. MICHEL. There has to be a certain measure of trust. We are
in that time when both parties are picking candidates to run for
President, a long, long tortuous trail to that at the end of the line,
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we have to give a certain measure of trust and confidence to whom-
ever the American people at that time have chosen to be their
Commander-in-Chief, and I have to trust in that judgment of the
people.
It may be against my best wishes.
Mrs. KENNELLY. Since we do live in a time of possible terrorism
within this country, which is considered a real possibility, are you
always available to know, does the White House know where you
are?
Mr. MICHEL. I don't know that they have had any real problem
ever running me down personally.
Mr. BEILENSON. They knew where you were on the override.
Mr. MICHEL. Oh, yes, and I make a special point of letting them
know where we are going to be at any given time.
Mrs. KENNELLY. Are you satisfied that the White House could
contact you, if in fact this legislation passed, within the 48-hour
notice?
Mr. MICHEL. There may be-sometimes I might be inaccessible
for some limited period of time. But I tell you, I guess my concern
is, when you are doing it simultaneously. A signal that is tipped on
that, because that can be, people can be aware of that, simultane-
ous notification. There are ways and means by which that is deter-
mined, and then the further away from this capital city of Wash-
ington you are, the more of a problem that becomes.
Mrs. KENNELLY. Thank you, Mr. Chairman.
Chairman MCHUGH. Mr. Hyde?
Mr. HYDE. One more brief question.
What do you do, Mr. Michel, when another country that you are
dealing with in tandem on an operation conditions their participa-
tion on non-disclosure? They have got their citizens involved, their
agents, their people, and they read the papers, and they will help
you, and we may desperately need their help, but they condition
their participation on non-disclosure.
What do you do then, if you are trapped into a 48-hour notifica-
tion?
Mr. MICHEL. That is an interesting question. The very raising of
the question by the distinguished gentleman begs some kind of
answer from the committee eventually.
Chairman MCHUGH. Thank you very much, Mr. Michel. I want
to reassure you again on the question of whether or not what we
are proposing here would affect the collection of intelligence, and I
would point out that under section 662 of the Foreign Assistance
Act, which is the Hughes-Ryan amendment, which is still in effect
and would be after this bill were enacted, covert operations and
notice requirements are not intended to affect intelligence-gather-
ing, so your understandable concern about that would be taken
care of by this particular language.
Mr. STOKES. Just one question.
Since you agree that 14 months is not timely notification under
the statute, and since he feels that 48 hours severely constricts the
President, does the gentleman care to offer a time limit that he is
agreeable to?
Mr. HYDE. Split the difference.
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Mr. MICHEL. Well, I can tell by the gentleman's demeanor that
he was about to pop that question, and I guess I have to say, it
must be someplace in between. But as I said, I have a real problem
when we get to finally delineating and specifically tying that down.
That is a difficult one to call. I think the committee has been made
aware of the real serious problem, in that type of frame, and I will
leave it go at that.
Mr. STOKES. Thank you very much.
Chairman MCHUGH. Thank you very much, Mr. Michel.
Our next scheduled witness was to be Senator Moynihan of New
York, but he is the Floor leader on the question of the highway bill
override in the Senate, so he has submitted his statement, and will
not be with us.
There is one comment in his statement which I would like to
read at this point, because it gets to the heart of the question of
whether Congress can be trusted, and Mr. Hyde has suggested that
in certain cases, the intelligence community should be able to
share information with the intelligence agencies of other countries,
and not be burdened with telling Congress.
Mr. Moynihan says,
There is a notion that the Congress cannot be trusted. That the Congress is a na-
tional security risk. Wrong. Committees here take matters with great care. You
treat matters before your committee with great care. We are not to be held respon-
sible for the revelation of public belligerent acts such as the mining of Nicaraguan
harbors, or revelations by adversaries such as happened in the Beirut newspaper, Al
Shiraa.
When you get to the point where you trust a Ghorbanifar, a man the career intel-
ligence service did not trust, before you trust the Speaker of the House; or when you
decide to pass on intelligence information to the Ayatollah but will not inform the
Chairman of the Intelligence Committee of a Presidential finding, then matters are
confused. And it is time to add some order with amendments such as these.
[The statement of Senator Moynihan follows:]
STATEMENT BY SENATOR DANIEL PATRICK MOYNIHAN
Mr. Chairman, I should like to thank you for inviting me before your committee
to discuss a vital subject-our intelligence oversight process. Indeed this process, so
necessary in a democracy, is near unique; only the Bundestag has anything quite
like it. Oversight is a delicate matter involving Constitutional principle, national se-
curity, and freedom of information. While I can not o: +remphasize the need for sen-
sitivity, a concern for secrecy and leaks is no excuse for abandoning sound process
or notification.
To start, then, I should make it clear that I support H.R. 1013, "the Intelligence
Oversight Amendments of 1987." Iranamok (or whatever) has again demonstrated
the need to resolve ambiguities involving the timely reporting of covert actions as
established by the Hughes-Ryan Amendment to the Foreign Assistance Act of 1961,
and the Intelligence Oversight Act of 1980.
The Senate tried to do this following the mining of Nicaraguan harbors in 1984.
That was the first breach of faith between the intelligence Communities, the Execu-
tive and the intelligence community. In its aftermath, we thought we had reached
an understanding with the executive branch on just what "fully and currently in-
formed," "significant anticipated activities," and "timely fashion" meant. This un-
derstanding came to be known as "the Casey Accords." We now know those Accords
were honored in the breach-we failed. And I think it might shed some light on
your current deliberations to briefly review the history of those Accords.
As you know, the Intelligence Oversight Act of 1980 established the principle that
the Intelligence Committee would be informed of all covert action "other than ac-
tivities solely for obtaining necessary intelligence." And there was the provision
that if something of great urgency and sensitivity was involved, the President could
inform the Congress in a "timely fashion," and he need only inform the Chairman
and Vice Chairman of the Intelligence Committees, the Speaker, House Minority
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Leader and Majority and Minority Leaders of the Senate, the so-called "Gang of
Eight."
This worked well until the spring of 1984 when it emerged that the Intelligence
Committees had not been told of the mining of Nicaraguan harbors. There were in-
dications. A one sentence cryptic allusion in an 84 page hearing transcript. But by
all counts the Administration was not observing the spirit of the law.
The Chairman, Senator Goldwater, was outraged, and let Mr. Casey know so, com-
plete with expletives deleted. To the contrary, the National Security Advisor said at
the Naval Academy on April 12, "Every important detail (of the mining operation)
was shared in full by the proper Congressional Oversight Committees." In other
words, Senator Goldwater had lied. He had not. Mr. McFarlane was misled. Three
days later I resigned in protest as Vice Chairman of the Committee, coming back on
only after Mr. Casey apologized to the Committee. Clearly, we needed to clarify
covert action re rting procedures, and we did.
On June 6, 1984, Senator Goldwater, myself, and William Casey-with the Presi-
dent's explicit agreement-negotiated and signed "the Accords." Simply put, the un-
derstanding provided that the DCI would notify the Committee of all covert action
activities for which higher authority or Presidential approval was required (a work-
ing definition of "significant") and that this notification would occur prior to imple-
mentation of the actual activity subject to the possible exceptional circumstances al-
lowed for by the Intelligence Oversight Act. The agreement also called for a joint
review the following year.
The review declared: "Notification of the Committee prior to implementation will
be accomplished in the following situations, even if there is no requirement for sepa-
rate higher authority or Presidential approval or notification:
"Significant military equipment actually is to be supplied for the first time...."
In this same addendum Mr. Casey, Chairman Durenberger, and Vice Chairman
Leahy "agreed that the procedures have worked well and that they have aided the
Committee and the DCI in the fulfillment of their respective responsibilities." But
this appraisal came five months after the President's Intelligence Finding of Janu-
ary 17, 1986.
The fact is that 14 months after the "Casey Accords" were signed almost the
same persons chose not to abide by the agreements, or its addendum signed in June
1986. The aftermath was almost predictable; and this time they almost brought a
presidency down. The contempt once expressed for the Congress was transferred as
well to the principal national security advisors and agencies. The normal covert-op-
erations mechanism was bypassed. Career officers forced out. The definition of
timely remained ambiguous, or perhaps only the Administration's interest in adher-
ing the sprit of the agreement was ambiguous. There should be no such problem
if "the Intelligence Amendments of 1987" become law.
That is why it is so important, Mr. Chairman, that your bill makes effort to
remove those ambiguities inherent in the compromise legislation of 1980 and subse-
quent understandings with the Overesight Committees. Findings are to be provided
in writing; no lapse in memory permitted. The Tower Commission Report tells us
something of this problem in discussing those first Israeli shipments of arms to the
Iranians in 1985.
"Under the National Security Act, it is not clear that mere oral approval by the
President would qualify as a Presidential finding that the initiative was vital to the
national security interests of the United States. The approval was never reduced in
writing. It appears to have been conveyed to only one person (Mr. McFarlane). The
President himself has no memory of it."
Point made. Your bill would do away with this sort of ambiguity.
What's more, it requires by law that the Vice President, Secretary of State, Secre-
tary of Defense and Director of Central Intelligence, in other words, all the mem-
bers of the National Security Council and DCI, also be provided copies of Presiden-
tial Intelligence Findings, in writing. This is sound. The January 17, 1986 finding-
The Finding-was not shown to key policy makers including Secretary of State
Shultz. Only a single copy of the Finding was kept at the White House. The Tower
Commission reports the reaction of the Secretary of State when the finding was
eventually revealed by Vice Admiral Poindexter at the White House on November
10, 1986:
"I might say that when he read out that finding, I said that's the first I heard of
that. Cap, who was sitting across the room from me, said, 'I have never heard of it
either."
The Commission concluded, "With the exception of the NSC staff and, after Janu-
ary 17, 1986, a handful of CIA officials, the rest of the executive departments and
agencies were largely excluded." Regardless of management style, that is no way to
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run a cabinet or an agency. I say that with some background, having served in the
cabinet or subcabinet of four Presidents: Kennedy, Johnson, Nixon and Ford.
I am less certain that 48 hours shall prove an absolute qualifier of "timely."
Mind, 10 months is not. But as Mr. Turner has pointed out there are specific oper-
ations of considerable sensitivity and limited scope which may warrant more flexi-
bility. Indeed, Mr. Gates during testimony in February, said he could imagine sce-
narios where he would support a Presidential decision not to notify Congress of a
significant intelligence event for 4-6 days. But that is a matter for the committee to
take up and hearings to resolve. I would only suggest you consider all positions on
this.
A closing thought. There is a notion that the Congress can not be trusted. That
the Congress is a national security risk. Wrong. Committees here take matters with
great care. You treat matters before your committee with great care. We are not to
be held responsible for the revelation of public belligerent acts such as the mining
of Nicaraguan harbors, or revelations by adversaries such as happened in the Beirut
newspaper Al Shiraa.
When you get to the point where you trust a Ghorbanifer, a man the career intel-
ligence service did not trust, before you trust the Speaker of the House; or when you
decide to pass on intelligence information to the Ayatollah but will not inform the
Chairman of the Intelligence Committee of a Presidential finding; then matters are
confused. And it is time to add some order with amendments such as these.
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Procedures Governing Reoorcin
to the Senate Se ecc Co:.mitcee on Ince itence (SSCI)?
on Covert Action
The DCI and the SSC( agree chat a planned intelligence
activity may constitute a "significant anticipated intelligence
activity" under section 501 of the National Security Act of
1947 (the "Intelligence Oversight Ace of 19bn") even if the
oLanned activity is pare of an ongoing covert action
operation within the scone of an existing Presidential
Finding pursuant Co the Hughes-Ryan Amendment (22 U.S.C.
2422). The DCI and the SCI further agree that they may
better discharge their resoeccive responsibilities under
the Overnight Act by reaching a clearer understanding
concerning reporting of covert action activity. To this end
the DCI and the SSCI make the following reoresentations and
undertakings, subject co the possible exceptional circumstances
contemplated in the Intellizence Oversight Act:
1. In addition to providing the SSCI with the text of
new Presidential Findings concerning covert action, the DCI
will orovide the SSCI with the contents of the accompanying
scone paper following aoproval of he Finding. The contents
of the scope paper will be provided in wricinq unless the
SSCI and the DCI agree that an oral oresencacion would be
oreferable. Any subseouenc -codification :3 :`e scope paper
will he provided to the SSCI.
2. The DCI also will inform the SSCI 3f any ocher
olanned?covert action activities for which hither authority
or Presidential approval has been provided, including. but
not limited to, aoorovals of any activity which would
substantially change the scone of an ongoing covert action
operation.
3. Notification of :he above decisions will, be provided
co the SSCI as soon as :raccicable and prior to implementation
of the actual activity.
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39
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4. The DCI and the SSCI recognize chat an activity
olanned to be carried out in connection with an ongoing
covert action ooeracion may be of such a nature that the
Committee will desire notification of the activity prior to
implementation, even if the activity does not require
separate higher authority or Presidential approval. The
SSCI will, in connection with each ongoing covert action
ooeracion, communicate to the DCI the kinds of activities
(in addition to chose described in Paragraphs 1 and 2) that
it would considec to fall in this category. The DCI will
independently cake steps to ensure chat the SSCI is also
advised of activities chat the DCI reasonably believes
fall in this category.
5. When briefing chi SSCI on a new Presidential
Finding or on any activity described in paragraphs 2 or 4,
the presentation should include a discussion of all important
elements of the activity, including operational and political
risks, possible reoercussions under treaty obligations or
agreements, and any special issues raised under.U.S. law.
5. To keeo the SSCI fully and currently informed on
the orogress and status of each covert action operation, the
DCI will provide to the SSCI: (A)'a comprehensive annual
briefing on all covert action operations: and (B) regular
information on implementation of each ongoing operation.
with emphasis on aspects in which the SSCI has indicated
oarcicular interest.
7. The DCI and the SSCI agree that the above procedures
reflect the fact that covert action activities are of
particular sensitivity. and is is imperative chat every
effort be -nade to prevent their unauthorized disclosure.
The SSCI will protect the information provided pursuant to
these notification procedures in accordance with the orocedures
sec focth:in S.Res. 400, and with special retard for the
extreme sensitivity of these activities. It is further
recognized that public reference to covert action activities
raises serious problems for the United States abroad, and,
therefore, such references by either the Executive or
Legislative Branches are inappropriate. It is also recognized
that the compromise of classified information concerning
covert activities does not automatically declassify such
information. The aopearance of references to such activities
in the public media does not constitute authorization to
discuss such activities. The DCI and the SSCI recognize
that the long established oolicv of the U.S. Government is
not to comment publicly on classified intelligence activities.
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8. .The DCI will establish mechanisms to assure that
the SSCI is informed of planned activities as Provided by
paragraphs 1 through 4. and that the Committee is fully and
currently informed as provided by paragraph 6. The DCI will
describe these mechanisms to the SSCI.
9. The SSC!. in consultation with the DCI when appropriate.
will review and, if necessary, refine the mechanisms which
enable it to carry out its responsibilities under the
Intelligence Oversight Act.
10. The DCI and the SSCI will jointly review these
procedures no lacer than one year after they become operative.
in order to assess their effectiveness and their imoact on
the ability of the DCI and the Committee to fulfill their
resoeccive responsibilities.
ice airman. SKI
06,IUN a"
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ADDENDUM TO PROCEDURES GOVERNING
REPORTING A MM TTEE
----WINTELLTGENCL ON COVE TW-
1. In accordance with Paragraph 10 of the Procedures
Governing Reporting to the SSCI on Covert Action, executed on
June 6, 1984, the SSCI and the DCI have jointly reviewed the
Procedures in order to assess their effectiveness and their
impact on the ability of the Committee and the DCI to fulfill
their respective responsibilities under section 501 of the
National Security Act of 1947.
2. The Committee and the DCI agree that the Procedures
have worked well and that they have aided the Committee and
the DCI in the fulfillment of their respective responsibilities.
The Committee and the DCI also agree to add the following
Procedures set forth below:
In accordance with the covert action approval
and coordination mechanisms set forth in NSDD 159,
the "advisory" format will be used to convey to
to the SSCI the substance of Presidential
findings, scope papers, and memoranda of notifi-
cation.
Advisories will specifically take note of any
instance in which substantial nonroutine support
for a covert action operation is to be provided
by an agency or element of the U.S. Government
other than the agency tasked with carrying out
the operation, or by a foreign government or
element thereof. It is further agreed that
advisories will describe the nature and scope
of such support.
In any case in which the limited prior notice
provisions of section 501(a)(1)(E) of the
National Security Act are invoked, the advisory
or oral notification will affirm that the
President has determined that it is essential
to limit prior notice. It is further agreed
that in any section 501(a)(1)(8) situation,
substantive notification will be provided to
the Chairman and Vice Chairman of the SSCI at
the earliest practicable moment, and that the
Chairman and vice Chairman will assist to the
best of their abilities in facilitating secure
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notification of the Majority and Minority leaders
of the Senate if they have not already been notified.
It is understood that responsibility for Accomplish-
menc of the required notification rests With the
Executive Branch.
?- It is understood that paragraph 6 of the Procedures,
which requires that the SSCI shall be kept fully and
currently informed of each covert action operation,
shall include significant developments in of related
to covert action operations.
-- The DCI will make every reasonable effort to inform
the Committee of Presidential Findings and signifi.
cant covert action activities and developments as
soon as practicable.
3. In accordance with paragraph 4 of the Procedures, the
DCI recognizes that significant implementing activities in
military or paramilitary covert action operations are matters
of special interest and concern to the Committee. It is agreed,
therefore, that notification of the Committee prior to implement-
ation will be accomplished in the following situations, even if
there is no requirement for separate higher authority or
Presidential approval or notification:
-- Significant military equipment actually is to be
supplied for the first time in an ongoing operation,
or there is a significant change in the quantity
or quality of equipment provided;
-- Equipment of Identifiable U.S. Government origin
is initially made available in addition to or In
lieu of nonattributable equipment;
-- There is any significant change involving the
participation of U.S. military or civilian staff,
or, contractor or agent personnel, in military or
paramilitary activities.
4. The DCI understands that when a covert action operation
includes the provision of material assistance or trainin to
foreign government, element, or entity that simultaneously isa
receiving the same kind of U.S. material assistance. or training
overtly, the DCI will explain the rationale for the covert
component.
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5. The DC1 understands that the Committee wishes to be
informed if the President ever decides to waive, change, or
rescind any Executive Order provision applicable to the conduct
of covert action operations.
6. The Committee and the DCI recognize that the under-
standings and undertakings set forth in this document are
subject to the possible exceptional circumstances contemplated
in section 501 of the National Security Act.
7. The Procedures Governing Reporting to the SSCI on
covert action, as modified by this agreement, .ill. remain in
force until-modified by mutual agreement.
June 10, 1986
Date
ce a rman.
'SSCI
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Chairman McHUGH. I would like to invite our next witnesses to
join us in a panel in an effort to save your time and ours.
We are very grateful for your patience, as well as your presence
here today.
Our first panelist will be Admiral Stansfield Turner, who served
as Director of the Central Intelligence Agency during the Carter
Administration, graduated from the Naval Academy in 1946, and
spent two years at Oxford as a Rhodes scholar. His naval experi-
ence included two years as Commander of the NATO Southern
Command.
Our second panelist will be Mr. William Colby, who also served
as Director of Central Intelligence, and had a very long and distin-
guished career in the intelligence business before that. He has ap-
peared before our committee, as Admiral Turner has, many times,
and they have always contributed significantly to our discussion.
Our third panelist will be Ray Cline. Dr. Cline is presently Chair-
man of the U.S. Global Strategy Council, and is Young Professor of
International Law at Georgetown University School of Foreign
Service, and previously served as a Deputy Director for Intelli-
gence, CIA, as the Director of the Bureau of Intelligence and Re-
search at the Department of State, and Senior Advisor at the
Center of Strategic International Studies.
We appreciate all of you being here, and Admiral Turner, if we
may start with you, please?
STATEMENTS OF ADM. STANSFIELD TURNER, U.S. NAVY (RET.),
FORMER DIRECTOR OF CENTRAL INTELLIGENCE; WILLIAM E.
COLBY, ESQ., FORMER DIRECTOR OF CENTRAL INTELLIGENCE;
AND RAY CLINE, CHAIRMAN, U.S. GLOBAL STRATEGY COUNCIL
AND FORMER DEPUTY DIRECTOR FOR INTELLIGENCE, CIA
STATEMENT OF ADM. STANSFIELD TURNER
Admiral TURNER. Thank you, Mr. Chairman.
In view of the time, while I sat here I have cut my presentation
in half. I believe you have a written copy of it as well as a classi-
fied addendum to it.
Chairman McHUGH. Without objection, we will include that in
the record.
Admiral TURNER. Let me hit the highlights as quickly as I can
for you, sir.
With one exception which I will note below, I believe it is very
desirable that the intelligence oversight committees of the Con-
gress be informed of all covert activity within the 48 hour limit
proposed by the bill. The question is is this provision of law the
best, way to ensure that the Congress will in fact be informed
within 48 hours of the signing of a covert action finding by the
President.
We have recently had an unfortunate example of the Finding of
January 17, 1986 regarding CIA support in facilitating the delivery
of arms to Iran. The fact the notification was not given to Congress
of that Finding stands starkly in contrast with the written agree-
ment made between the Director of Central Intelligence and the
Senate Select Committee on Intelligence in the spring of 1984 in
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45
the wake of the controversy over whether the Congress was ade-
quately informed about the mining of the Nicaraguan harbors.
The Director of Central Intelligence purportedly pledged in a
written document that had the approval of the President to ensure
that the Congress was informed in the future of all significant in-
telligence activities. It would appear reasonable to consider that
the CIA support for the sale of arms to Iran was a significant intel-
ligence activity. In short, the written pledge of the Director in the
spring of 1984 was not sufficient to ensure that the Congress was
informed in January of 1986.
I would suggest then, Mr. Chairman, that the establishment of
good will and cooperation between the Executive Branch and the
two congressional committees on intelligence may be more impor-
tant than written agreements or provisions of law. The essential
question is how to restore mutual trust and confidence. We are
very fortunate on the 4th of March that the President, in his ad-
dress to the Nation on TV, stated unequivocally that his Adminis-
tration had come to a new view that there must be congressional
oversight.
I quote,
I am also determined to make the congressional oversight process work. Proper
procedures for consultation with the Congress will be followed not only in the lettsr,
but the spirit.
Let me suggest that there might then be some advantage in al-
lowing the Executive to prove itself in this regard without the Con-
gress first tightening the legal screws. I am suggesting at this par-
ticular moment discretion on the part of Congress may be the
better part of valor. When the intelligence community is adjusting
to the new Presidential Directive, it may be best not to sound any
more alarms than are necessary. Especially not with the provision
of law that may well not be effective anyway if there is not good
will in addition.
Mr. Chairman, I cannot speak for the Administration, of course,
but I do raise the specter that the Administration may find it nec-
essary to veto this bill if it comes before it. I know that when a
similar provision was discussed in 1980 in connection with the In-
telligence Oversight Act of that year, I recommended to President
Carter that he veto such a bill if it did pass the Congress. I believe
the President was inclined to do so at that time.
I would hate to see at this particular juncture that kind of adver-
sarial relationship develop between the committees and the Admin-
istration.
Now, as I mentioned at the beginning, I would suggest there is
one case in which notification to the Congress in 48 hours poses a
genuine concern to the intelligence professionals. That is when a
chief of intelligence finds that it is desirable to ask an American
employee, or a foreign agent, to put his or her life on the line in
some covert activity. I did this on three occasions.
I would have found it very difficult to look such an individual in
the eye and tell him or her that I was going to discuss this life
threatening mission with even half a dozen people in the CIA who
did not absolutely have to know, that is, who were not necessarily
and intimately involved in supporting this activity.
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Let me describe very briefly the three instances to which I re-
ferred, all are efforts in connection with the attempt to release our
hostages from Tehran in 1979 to 1980.
I will only sketch them briefly. There are more details in the
classified appendix to my comments.
First, as you will recall, and as has been mentioned earlier this
morning, six Americans escaped from the Embassy compound
when it was seized on November 4th, 1979. They eventually took
refuge in the residence of the Canadian Ambassador. We in the
CIA assumed responsibility for obtaining the release of those six
Americans. We did that in part by sending in a CIA covert action
professional into Tehran to engineer the departure of these six.
Now, for this person voluntarily to step into that hostile environ-
ment at that time was an act of bravery and self-sacrifice. Only a
bare handful of people in the CIA were privy to what was going on,
and in my conscience I could not have informed anyone else who
was not essential to the operation. We did proceed without inform-
ing the Congress. As you know, it was a highly successful under-
taking.
The second instance concerned what has come to be known as
the Desert One operation. The military needed to refuel helicopters
as they flew from an aircraft carrier in the - Arabian Sea to Tehran.
They were having great difficulty in finding any way to do this
without risk of revealing that a rescue effort was in progress. I
asked the CIA covert action experts to turn their minds loose on
this problem. They came back to me in about a week with the
thought that the desert floor in Eastern Iran might be sufficiently
firm to take the fixed-wing aircraft carrying the fuel for the heli-
copters.
What is more, they actually flew a light plane into the desert by
the light of a full moon. They took core samples and proved that
the desert floor was sufficiently firm.
Here again I was asking people to insert themselves into a hos-
tile country at high risk. Only a handful of CIA people knew of this
venture and we did not inform the Congress.
The third example concerned providing support for the rescue
force once it reached the environs of Tehran by helicopter. CIA
personnel went repeatedly into hostile Tehran to survey what the
rescue force would find on its arrival, and to acquire trucks to
transport the men from where the helicopters would drop them to
the walls of the Embassy.
Each such trip into Tehran was a highly risky venture and any
hint we were doing such a thing right through Mehrbad airport
would certainly have roused suspicions and raised the possibility
that our people would have been caught in an Iranian noose.
Again, very few individuals in the CIA knew of this activity and
we did not notify the Congress.
I believe instances like these three will be infrequent. I also be-
lieve the odds are high that these would be the kinds of operations
with which the Congress would agree were they informed. There is
no guarantee of that.
Here though we come back to the question of mutual trust. and
confidence. I would.. hope that a President who endorsed congres-
sional oversight as President Reagan has-just- done, would not un-
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dertake even a life threatening covert action that was also a major
change in foreign policy without informing the Congress.
One other recent development will minimize the risk that there
will not be such notification in cases like that. That is another new
policy which President Reagan also enunciated in his speech on
March 4th. He said,
I have also directed that any covert activity be in support of clear policy objec-
tives and in compliance with American values. I expect a covert policy that if Amer-
icans saw it on the front page of the newspaper they would say "That makes sense."
That pledge not only makes sense, I believe it gives greater as-
surance that almost all covert actions conceived by the Executive
will be acceptable to the Congress.
Finally, Mr. Chairman, let me offer one final suggestion. Over-
sight of intelligence has broken down but the fault is not entirely
with the Executive. The Congress, the media, the public were all
aware in August of 1985 that Lt. Colonel Oliver North was engaged
in activities in support of the contras. Whether or not these were
legal or illegal activities was unclear, but there was little question
in any of our minds that Colonel North was deliberately attempt-
ing to circumvent the spirit of the law governing support to the
contras.
Thus the oversight process did not work at the time the Presi-
dent needed the advice of the Congress. Why he did not get that
advice is something that you know far more better than I. I would
only suggest that it is not adequate to say that Mr. McFarlane or
others misled the Congress. If that is a sufficient excuse the very
oversight process that we are working on so hard is not worth the
attention we are giving it.
There is, then, some danger in my view that the public and the
Congress might look on this bill as all of the action necessary by
the Congress to correct the recently disclosed shortcomings in the
oversight process.
I would hope that Congress would concentrate instead on meas-
ures to improve its own conduct of oversight, to make it more rig-
orous and on steps to improve the relations between the intelli-
gence community and the Congress. We need, Mr. Chairman, to
return to conditions where we can conduct oversight in a coopera-
tive and constructive manner.
Thank you, sir.
[The statement of Admiral Turner follows:]
STATEMENT OF ADM. STANSFIELD TURNER, USN, (REr.)
Mr. Chairman: You have asked me to comment on a draft bill HR 1013 which
concerns strengthening the system of congressional oversight intelligence activities.
I am happy to do that. I approach the question with three key points in mind.
First, the bill is known as the Stokes-Boland bill. These are two men with whom
I've had the privilege of working closely in connection with congressional oversight
of intelligence. I have a deep respect for the constructive way in which they each
have consistently approached the question of oversight. Any bill which they sponsor
has to be taken with great seriousness.
Second, I work from the premise that rigorous congressional oversight of intelli-
gence activities is an essential strength of our intelligence system. We simply can
not have any element of our government that is not held accountable to someone.
So much of our intelligence activities absolutely must be kept secret, that only the
Congress can safely provide that accountability.
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Thirdly, I believe that the intelligence oversight process has not functioned ade-
quately over the past six years. The introduction of this bill alone would appear to
substantiate that premise. It is my observation from the outside, that the cause of
the breakdown in oversight has been a strong fear that the Executive Branch that
oversight had, or would become, dangerously intrusive.
The challenge today is how to restore a level of oversight adequate to provide ac-
countability without endangering the vital secrecy of the intelligence process. The
proposed bill would be a step in that direction by ensuring that the Congress had an
immediate role in overseeing any covert activities undertaken by the Intelligence
Community. With an exception I will note below, I believe it is highly desirable that
the intelligence oversight committees of the Congress be informed of such activities
within the 48 hour limit proposed by the bill. The question is, is such as provision of
law the best way to ensure that the Congrss will be informed within at least 48
hours of the signing of a "finding" by the President?
We have recently had the unfortunate example of the finding of January 17, 1986
regarding CIA support in facilitating the sale of arms in Iran. The fact that notifica-
tion was not given to the Congress of that finding stands starkly against a written
agreement made between the Director of Central Intelligence and the Senate Select
Committee in the spring of 1984. In the wake of a controversy over whether the
Congress was adequately informed about the mining of the harbors of Nicaragua,
the Director of Central Intelligence purportedly pledged in a written document that
had the approval of the President to ensure that the Congress was informed of all
significant future intelligence activities. It would appear reasonable to consider the
CIA's support for the sale of arms to Iran to be a significant activity. In short, the
written pledge of the Director in the spring of 1984 was not sufficient to ensure that
the Congress was informed in January of 1986.
I would suggest, then, that the establishment and maintenance of an attitude of
cooperation and goodwill between the executive branch and the two congressional
committees on intelligence may be more important than written agreements or pro-
visions of law. The essential question is how to restore mutual trust and confidence.
We are very fortunate that on March 4th in his address to the nation on television,
President Reagan stated unequivocally that his administration has come to a new
view that there must be congressional oversight. I quote, "I am also determined to
make the congressional oversight process work. Proper procedures for consultation
with the Congress will be followed, not only in the letter, but in the spirit." I am
sure that this committee, as well as all of us who appreciate the vital importance of
oversight, are delighted with this new Presidential instruction to the leaders of our
intelligence agencies. The proof of the pudding, of course, remains in the eating;
that is, the actual cooperation of those agencies in the oversight process.
Let me suggest that there might be some advantage in allowing the executive to
prove itself in this regard without the Congress first tightening the legal screws.
The professionals in the world of intelligence have come a long way in the last
eleven years in adapting to the idea of sharing secrets with the Congress. Still, they
are understandably alarmed at what they fear may be progressively greater and
greater intrusion into their secrets, to the point where some very high price may be
paid if there is an inadvertent disclosure. I am suggesting that at this particular
moment, discretion on the part of the Congress may be the better part of valor.
While the intelligence community is adjusting to the new Presidential directive, it
may be best not to sound any more alarm than necessary, especially not with a pro-
vision of law that may well not be effective anyway if there is not goodwill in addi-
tion.
In particular, I would suggest that there is one case in which notification to the
Congress within 48 hours poses a genuine concern to the intelligence professionals.
This is when a Chief of Intelligence finds it desirable to ask an American employee
of the Intelligence Community or a foreign agent to put his or her life at risk in
some covert activity. I did this on three occasions. I would have found it very diffi-
cult to look such an individual in the eye and tell him or her that I was going to
discuss this life-threatening mission with even half a dozen people in the CIA, who
did not absolutely have to know, that is people who were not necessarily involved in
supporting the activity. It would be especially difficult to tell people of this type
that you are informing others purely for the sake of checking on whether you your-
self are doing the right thing or not. People who are willing to lay their lives on the
line want to believe they are working for someone who knows what he is doing, not
someone who may change his mind at some critical point in the operation because
of what his advisors tell him.
Let me describe the three instances to which I referred. All concern our efforts in
1979-1980 to obtain the release of the Americans being held hostage in Teheran.
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First, in 1980 the CIA facilitated the successful escape from Teheran of the six
Americans who were hidden in the Canadian embassy. This involved sending a CIA
person into Teheran at high risk to his life to engineer the departure.
Second, when our military was searching for a way to refuel the helicopters that
were to fly to Teheran to rescue our hostages there, CIA personnel flew a light air-
craft into the Iranian desert. They landed there by the light of the full moon and
took core samples of the soil to prove that it was a suitable landing strip for con-
ducting the necessary refueling operation.
Third, CIA personnel went repeatedly into hostile Teheran to survey what the
rescue force would find on its arrival and to purchase the trucks to transport the
men from their helicopters to the embassy. Each such trip was a highly risky adven-
ture and any hint that we were doing such a thing right through Mehrabad airport
would almost certainly have caught one of our people in the Iranian noose.
I sincerely believe there will be more instances in the future when Directors of
Central Intelligence will want to commission acts similar to the three I have just
described. It would be a great struggle of conscience for a DCI in deciding whether
he or she could make the kind of requests that I did of these individuals and also
comply with a 48 hour rule for notifying the intelligence committees of Congress. I
believe instances like these three will be infrequent. I also think the odds are high
than there will be operations with which the Congress would agree if it knew. There
is no guarantee of that, however.
Here, though, we come back to the question of trust and confidence. I would hope
that a President who endorsed Congressional oversight, as President Reagan has
now done, would not undertake a life-threatening covert action that was also a
major change in foreign policy without informing the Congress. The balance be-
tween risking human life by telling even one person who does not need to know, on
the one hand, and not following democratic procedures for accountability, on the
other, is a delicate one. In no instance is it ever going to be an absolutely cut and
dried case that there can be no notification of Congress without undue risk to an
individual's life. I have said many times that I have confidence in the ability of the
Congress to keep secrets, but as I have mentioned already, it is not just a question
of notifying members of Congress. It is a question of notifying anyone who is not
necessarily involved. It also will never be black and white that having accountabil-
ity through informing the Congress in advance, or within 48 hours, is absolutely es-
sential to preserving our democratic procedures. I believe accountability is, indeed,
important, but there has to be some room for flexibility to notify the Congress
promptly in most instances, but not in all. I recommend leaving the laws sufficient-
ly flexible to provide for that.
One other recent development will minimize the risks of delayed notification to
the Congress. That is another new policy which President Reagan enunciated in his
speech of March 4th. He said: "I've also directed that any covert activity be in sup-
port of clear policy objectives and in compliance with American values. I expect a
covert policy that if Americans saw it on the front page of their newspaper, they'd
say, "'That makes sense.' "
That pledge not only makes sense, I believe it gives greater assurance that almost
all covert actions conceived by the executive will be acceptable to the Congress.
Finally, let me offer one other constructive suggestion. Oversight of intelligence
has broken down, but that is not entirely the fault of the executive. The Congress,
the media, and the public were well aware in August 1985 that Lieutenant Colonel
Oliver North was engaged in activities in support of the contras. Whether or not
they were legal activities was unclear, but there was little question in anyone's
mind that Colonel North was deliberately attempting to circumvent the spirit of the
law governing support to the contras. Thus, the oversight process did not work at a
time the President needed the advice of the Congress. Why he did not get that
advice, despite the warning signals we all saw, you know far better than I. I would
only suggest that it is not adequate to say that Mr. McFarlane or others misled the
Congress. If that were sufficient excuse, the very oversight process would not be
worth the attention we are giving to it.
There is, then, some danger in my view that the public and the Congress may
look on HR 1013 as all the action necessary by the Congress to correct the recently
disclosed shortcomings in the oversight process. I would hope Congress would con-
centrate instead on measures to make its conduct over oversight more rigorous and
on steps to improve relations between the Intelligence Community and the Con-
gress. We need to return to conditions where we can conduct oversight in a coopera-
tive and constructive manner.
Thank you, Mr. Chairman.
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Chairman McHUGH. Thank you very much, Admiral.
Mr. Colby.
STATEMENT OF WILLIAM E. COLBY
Mr. Coi.BY. Mr. Chairman, thank you for the invitation. I have
read over this proposed bill, Mr. Chairman, and I think it is per-
fectly understandable why the bill has come to be.
The long delay in complying with the timely notice requirement
obviously was a violation of the concept of the law. I think in that
situation one should first look to the proper execution of the law
rather than necessarily changing it; every time we have a murder
we don't necessarily change the laws against murder.
We try to execute them better and more effectively.
You have a situation where the Administration was dealing with
a rag tag bunch of Middle East arms merchants and was not will-
ing to share the same information with the responsible leadership
of the Congress. Obviously there is a contradiction there, a total
contradiction.
Even an estimate as to whether that operation would have re-
mained secret is really highly obvious. It couldn't possibly remain
secret considering the people that the Administration was dealing
with.
The fact is that the law as it existed was not followed. We all
know that. The problem of leaks is a very serious one and it is a
very serious problem to share sensitive information with the Con-
gress. We all know from our personal lives that if we have a secret
we have a secret, but if we share it with someone, we have half a
secret and if you apply the same proportionality to the kinds of se-
crets we have now, I think many of our very serious national se-
crets are in the category of a .00001 of a secret rather than any
kind of a real secret, this is the problem we are wrestling with.
I have great respect for the Congress in its role of oversight. I
think it is an essential part of our constitutional system. It is not a
happenstance that this is a select committee. It was set up as a
select committee so that the Speaker and the Minority Leader
could be selective about who appears on this committee and they
can keep the people that they do not have faith in off the commit-
tee.
They will have a difference of opinion certainly, but they will
have a faith that those people will be responsible in their activities.
Should the Congress know everything? The fact is the answer to
that is obviously no. There are things that the Congress does not
need to know. When we got into our first set of investigations of
the Agency, I called upon the Chairman of the various committees
that were investigating me and I said, look, I am not going to con-
test your constitutional right to know everything because that is a
dead issue. I will never win that.
We have decided that we have a constitutional separation of
powers.
But I want to convince you of the same rule that we apply to
ourselves in the intelligence community. It is called need to know.
Do I need to know some item of information? Because if I don't I
shouldn't know it. I said, I as Director do not need to know the
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names of individuals serving for us secretly in, for instance, East-
ern Europe. I arrange my affairs so I don't know their names. I
know there are people there, I know roughly how good the infor-
mation is, all the rest of it, but I don't need to know their names.
Today I don't know their names and I am glad I don't. I had one
effort by somebody to be nice to one of these fellows and send him
a letter with my signature at the bottom congratulating him on
what a good job he had done, I was quite willing to send my name,
no problem, but it had his name there and I almost blew the roof
off the place.
The idea of putting his name and my name on the same piece of
paper was a death warrant for that individual, no question about
it.
The two chairmen I am delighted to say did agree with me that
we would conduct that massive investigation into American intelli-
gence without the names. I think that is the kind of arrangement
that can be made. Leave the constitutional issue aside, make the
arrangement based on sense.
The law says that the Congress will be informed in a timely fash-
ion and if the action is already taken it shall provide a statement
of the reasons for not giving prior notice.
I think Admiral Turner has just given us three reasons for not
giving prior notice, and I don't think anybody in the Congress
would take issue with the fact that that information was not
passed to the Congress before or during that sensitive operation.
The fact is the machinery is there. Now, the Congress can go
ahead and counter a somewhat imaginative bit of legalese that a
finding could be oral and not in writing. But this is a kind of mi-
cromanagement of the President's office and I think we really have
to let the President pretty well be responsible for how he runs his
office.
Even this bill, I might add, has some loopholes in it.
For instance, it says at the very top, to the extent consistent with
due regard for the protection from unauthorized disclosure of clas-
sified information. Due regard in Admiral Turner's cases I think
would say, well, I had due regard for the importance of the protec-
tion of these sources, these individuals and thereafter I didn't
follow the rest of the provision requiring that the information be
used.
Below, the act says that nothing in the Act shall be construed as
authority to withhold information from the intelligence committees
on grounds that providing it to the committees would constitute
unauthorized disclosure.
But we are not talking about whether giving it to the committee
would be an unauthorized disclosure, we are resting upon the risk
with due regard for protection of our intelligence sources.
So there is a loophole here. The Congress can pass this law and if
some President doesn't want to follow the sensible rules of getting
along with Congress, we are going to have another meeting just
like this two, three, five years from now at which somebody will
sa well, he is not allowed to have due regard for that, he's got to
tell everything.
Then that won't pass because it really doesn't make too much
sense.
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So my conclusion, Mr. Chairman, is fairly simple, I think it does
depend upon the relationship between the committee and the Ad-
ministration, that in this case there was a failure of that relation-
ship and that this should be improved. To borrow a phrase from
my neighbor the Admiral here, I think the mere submission of this
bill and holding these hearings is a shot across the bow or perhaps
across the stern of the Administration in this case, and that this
will certainly be taken due note of.
I am a great believer in the case law system in which we don't
try to define every last detail of relationships, but let developments
determine how the law is to be interpreted and applied over the
years. That is how our judicial system works, and I think it applies
to this.
If I may on one point, Mr. Chairman, just take a moment, I
think the Speaker did misspeak himself a bit on a couple of details
and I deeply appreciate Mr. Hyde's correcting the record on the Al-
lende decision. There was a CIA operation there long before the
coup, that was not a secret CIA operation alone. It was directed by
the President of the United States, very, very precisely, to the then
Director of Central Intelligence. It was a legal order at that time.
It would not meet the Hughes-Ryan requirement at this time but
that requirement came long after this incident.
Secondly, the Speaker referred to the plan to destabilize Chile. I
must take a point of personal privilege on that because that word
was put in my mouth by a former Member of the Congress and it
was proved to the satisfaction of the committee at that time that I
had never used that word. I would not use that word because that
was not our policy.
So that word has been improperly assigned to the CIA's activi-
ties, as Mr. Hyde points out.
And thirdly, the Arbenz case that the Speaker mentioned, the
CIA did not have a plan to assassinate Mr. Arbenz, it had a plan to
overthrow him. I think this is a difference and I would just like to
clarify that for the record. With great respect to the Speaker, I am
afraid he was somewhat misinformed on that.
Chairman McHUGH. Thank you very much, Mr. Colby.
Dr. Cline.
STATEMENT OF RAY CLINE
Mr. CLINE. Thank you very much, Mr. Chairman.
I can be fairly brief because I want to begin by associating myself
with the views of my two former colleagues at the table with me. It
gives me special pleasure because I have been worrying about intel-
ligence operations and congressional oversight for more than 40
years, and I was chief of the current intelligence staff for Bill
Donovan in OSS when we dropped Bill Colby in France and he has
been doing well ever since.
And of course I was at Oxford almost ten years before Stan
Turner, so I have links with these gentlemen for a long time, and I
agree with everything they said today.
My familiarity with the congressional oversight problem is par-
ticularly related to the earlier period of congressional oversight
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53
before these committees were established, when there were a varie-
ty of committees trying to observe what CIA was doing.
I often briefed them, the then-committees in the 1960s when Sen-
ator Richard Russell and Representative Carl Vinson were the
principal congressional representatives, and I can assure you they
ran their committees with a very firm hand and the briefings were
very thorough, and as far as I know they learned everything that
they needed in the way of understanding of covert operations and
sensitive operations of all kinds, and I am happy to say in those
days I am not aware of any leaks from congressional committees.
It is a happy day in some ways compared to our present contro-
versial position.
It is for that reason, recalling those days, that I want to say that
I feel obliged to make a single comment on H.R. 1013 much along
the lines that Mr. Michel and Congressman Hyde have already
made, so I can be brief about that.
In my view these new amendments prescribe an unwarranted ri-
gidity with respect to timing of notification. That is essentially
what the critics have been saying. Forty-eight hours or 14 months
or whatever is a rigidity however you define it.
They also are counterproductive in the micromanagerial congres-
sional intrusion into the executive authority of the President to
conduct sensitive national security operations.
I am sure that that is not the intention, but my belief based on
running clandestine and covert operations, is that there would be a
chilling effect from such close supervision by the Congress, and
Stan Turner has given you an example of how that might be, and
how the present law allows exceptions to be made.
I think the key is that Mr. Stokes and Mr. Boland are right in
saying that, and I quote Mr. Stokes, "a congressional committee's
oversight efforts are largely dependent on the willingness of the
Executive Branch to provide information." And Boland said, "there
exists a serious and fundamental disagreement between the Execu-
tive Branch and the Congress over the requirements of the existing
law." He is referring of course to this concept of notification in a
timely fashion.
I submit that the answer to that as has been suggested by many
people, is not a dictate from the Congress. It is an attempt to work
out a reasonable cooperative relationship between the Executive
Branch and these committees on the question of what the best
meaning of prior notice and timely fashion is from the point of
view of both of the interested parties, and an understanding that
there may be an area of ambiguity and flexibility in the interpreta-
tion of that reasonable law.
I believe this legislation departs from that principle. It smacks a
little bit of an attempt at a congressional political coup to nail
down its point of view which clearly will be opposed by the Execu-
tive Branch and I think correctly so.
It is certainly true and this is a footnote in the previous discus-
sion, I can easily imagine operations where the President makes a
finding and initiates a chain of events which may well not have
any precise impact for many hours, many days or even many
months. It was not totally, it is not totally impossible that there
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should be a very long lapse before the necessity of timing notifica-
tion to Congress exists.
That is a complex and often controversial subject. But I believe
you should approach it with a view to the problems of the Execu-
tive Branch and particularly the intelligence officers in carrying
out what you want to be carried out if there is such an operation to
be taking place and, an efficient secret operation.
Regrettably as has been pointed out, the likelihood that contro-
versial covert action proposals on sensitive operations will leak to
the press and the public in one way or another if prior notice is
rigidly required means the Executive Branch will be hesitant, to be
forthcoming, and may forego very important operations that would
be useful to the United States. I think that is something the Con-
gress ought to be concerned about.
The worst outcome of course would be a prolonged dispute in ad-
versarial climate between the Executive and Legislative Branches
after notification is given. The damage will be as great from this as
from the rather exceptional cases in which delaying notification
more than 48 hours might occur.
The President certainly ought to have the opportunity to conduct
high risk, high win activity in the foreign policy and national secu-
rity field.
He should have the right to determine when there is a good
reason to delay notification because of extreme sensitivity to leak-
age and failure. Timely fashion-that carefully wrought phrase,
seems to me to be the best phrase you can use in the circum-
stances.
So I would say rather than passing H.R. 1013, the House commit-
tee would be well advised to promote a way of improving security
of information, provided by the oversight committees and their
staffs, and to reassure the Executive Branch of their ability to do
this and to invite a more cooperative and informative attitude on
that basis.
I would like just in passing to endorse the House Joint Resolu-
tion 48 providing for an establishment of a joint committee on in-
telligence sponsored by Congressman Hyde, because that would be
a move to soothe executive-congressional relations, a step in the
right direction rather than one to exacerbate them.
In summary then, Mr. Chairman, I would just like to say that I
believe the Congressmen have the duty to represent the views of
their constituents in giving broad strategic guidance to shape U.S.
legislation and policy. There is no question about that. With re-
spect to foreign policy and national security, the Chief Executive
also is mainly responsible for decisionmaking and execution of laws
and policies. The Congress should not try to legislate the specific
modalities of the execution of policies in the foreign policy and na-
tional security field, particularly when the element of secrecy is in-
volved.
It does seem to me therefore that it is likely to reduce rather
than increase the effectiveness and cooperative relationship be-
tween the Congress and the Chief Executive in dealing with covert
operations if H.R. 1013 is passed, and therefore I would respectfully
submit that discussion of this issue is better than passing a piece of
legislation on this item.
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Thank you.
[The statement of Mr. Cline follows:]
STATEMENT OF RAY S. CLINIC, CHAIRMAN, U.S. GLOBAL STRATEGY COUNCIL
It is my privilege to have an opportunity to give you my views on intelligence
oversight by the Congress of the United States in the context of the amendments
proposed in H.R. 1013.
My familiarity with the issues involved goes back in time many years to include a
period when oversight was exercised by a number of committees mostly under the
firm and competent leadership of Senator Richard Russell and Representative Carl
Vinson. I had the duty of briefing these gentleman and their colleagues when I was
CIA's Deputy Director for Intelligence , 1962-1966. I do not believe that CIA ever
withheld any information from them and tried very diligently to provide them with
outlines of future operations that might be construed as coming within their legisla-
tive provenance.
I am not aware that any secret or sensitive intelligence data provided to the over-
sight committees of that day or to the companion legislation committee, the Joint
Committee on Atomic Energy, ever leaked out from Capitol Hill after those briefings.
This reminiscence is related to the single comment I feel obliged to make on H.R.
1013. In my view, the new amendments prescribe an unwarranted rigidity with re-
spect to timing of notification. They also are counterproductive in micromanagerial
congressional intrusion into the executive authority of the President to conduct sen-
sitive national security operations.
Mr. Stokes and Mr. Boland are right in saying, as they did in the House on Febru-
ary 4, 1987, "a congressional committee's oversight efforts are largely dependent on
the willingness of the executive branch to provide information" (Stokes), and "there
exists a serious and fundamental disagreement between the executive branch and
the Congress over the requirements of the existing law" (Boland)-referring of
course to the requirement of notification in "a timely fashion."
It is now proposed this disagreement be resolved by Congressional dictate. I think
that is the wrong solution. In view of the long debates over "prior notice" and
"timely fashion," this complex and controversial issue ought to be left as it is in
legislation until a more cooperative relationship between executive and legislative
oversight bodies can be established in practice. Now is not the time for a congres-
sional coup attempt if the objects is more cooperation and better information.
Regrettably, the likelihood that controversial covert action proposals on very sen-
sitive operations will leak to the press and the public in one way or another, if prior
notice is rigidly required, means that the executive branch will be less forthcoming.
In fact, I think the record of controversial covert actions about which the congres-
sional oversight committees were informed in the last few years shows that all have
become matters of public knowledge. The public discussion of contra operations in
minute detail is a self-defeating process that makes successful covert action virtual-
ly impossible. It is this lack of confidence in security that causes the hestitation of
the executive agencies to give prior notice of high-risk undertakings and, indeed, to
pass information before the operation has had a chance to get off the ground.
The worst outcome is a prolonged dispute and an adversarial climate between the
executive and legislative branches after notification is given. The damage will be as
as great as from the rather exceptional cases in which delaying notification more
than 48 hours might occur.
In some cases, certainly, the 48-hour-requirement may be unreasonable if absolute
secrecy is to be protected while a covert operation is test l'ng itself against reality.
While the concepts of notification and consultation are sound, the President always
should have the constitutional prerogative to take certain risks in the foreign policy
and national security field.
The President ought to have the opportunity to conduct high-risk, high-win activi-
ties, and he should have the right to determine when there is a good reason to delay
notification because of extreme sensitivity to leakage and failure. "Timely fashion"
seems to me the best phrase in the complicated circumstances.
Rather the passing H.R. 1013, the House committee would be well advised to pro-
mote a way of improving security of information provided the oversight committees
and their staffs. A step in the right direction would be endorsement of House Joint
Resolution 48 providing for establishing a Joint Committee on Intelligence similar
to the hold Joint Atomic Energy Committee. A move to exacerbate executive-con-
gressional relations to a step in the wrong direction.
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In summary I believe that Congressmen have to duty to represent the views of
their constituents in giving broad strategic guidance to shape U.S. legislative and
policy. With respect to foreign policy an national security, the Chief Executive is
plainly responsible for decision-making and execution of laws and policies. The Con-
gress should not try to legislate the specific modalities of execution of policies in the
foreign policy and national security field. It will be likely to reduce rather than in-
crease the cooperative relationship between the Congress and the Chief Executive.
Hence I oppose H.R. 1013.
Chairman McHUGH. Thank you very much, Dr. Cline.
You all represent a very significant amount of experience and
that is something we should take into account in our consideration
of these bills, and so we appreciate your testimony.
Admiral Turner, I would start with you. You mentioned in your
statement that the oversight process broke down in part because
the congressional committees didn't exercise sufficient aggression, I
suppose, in pursuing the reports which were in the press about
Oliver North s activities in the White House.
That may be true, but I think it is important to state for the
record that when we read those reports, we invited Mr. McFarlane
to visit with us in the committee room. We all had an opportunity
to ask him questions specifically about those reports to determine
whether or not indeed the White House was engaged in this type of
activity.
Mr. McFarlane assured us that he had investigated this thor-
oughly and that there was nothing to these reports whatsoever.
On a subsequent occasion, we visited Mr. North himself in the
Situation Room in the White House and we inquired of him very
specifically whether or not he was involved in any of these activi-
ties which were reported. Mr. North assured us that that was not
the case.
Now, it is quite possible that we should have not taken them at
their word, but frankly we were relying upon the kind of trust and
comity which you gentlemen are suggesting we rely upon in these
cases. And we have learned from bitter experience that we were
lied to.
Indeed our congressional oversight responsibility which is a seri-
ous one, was compromised and in some respects, we feel as you
have suggested, some responsibility for that breakdown.
Now the question of course is how to deal with it. Hopefully,
people will tell us the truth in the future. But the question here is
whether or not we should rely upon that hope or whether or not
there is some other framework which will give further encourage-
ment to the White House in future cases.
So I want to make that statement, because while I think it is fair
to say that we might have been more aggressive and not accepted
the word of Mr. McFarlane and Colonel North, the fact is we did
try and we did rely upon those representations to us and we
learned in hindsight that we were foolish to do so.
Now, I think Admiral, you have presented us with hard cases.
The ones you have outlined are difficult cases because, as you say,
people's lives are in jeopardy, and you as the director have to send
people out to risk their lives for the country in these cases.
So I think those cases that you have described pose one set of ex-
amples which are important for us to consider, and the Iran case
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poses the other example, and they are both legitimate cases it
seems to me.
On the one hand, in your situations there were a handful of
people in the Executive Branch who necessarily had to know. You
say a handful and I am not sure how many that would be, but pre-
sumably there were at least a few others beside yourself who knew
about this.
The question for us is whether or not the key leaders of the Con-
gress would not be as trust worthy to know that information as the
handful in the Central Intelligence Agency or the Executive
Branch. Naturally we are inclined to think that the Speaker of the
House, the Minority Leader, the Chairman of the Intelligence Com-
mittee and the Ranking Member of the Intelligence Committee and
their counterparts in the Senate are trustworthy people and can
hold that kind of very sensitive information carefully.
On the other hand, in the Iran case, to the extent that it is an
example and we have to consider it as one here, the fact that the
President did not notify or consult with anyone in Congress in part
at least contributed to not just the fact that Congress wasn't noti-
fied, but contributed to what I think most of us would consider a
very substantial amount of damage to American interests. Our
counterterrorism policy is in shreds as a result of this foolish policy
of selling arms to Iran, and the Minority Leader and Speaker have
both said they would have objected strongly if the President had
shared this notion with them in advance.
Presumably it might have helped avoid not just a failure to
notify Congress, but would have avoided this very substantial
damage. So these two cases, yours on the one hand which are com-
pelling cases I admit, but the Iran situation on the other, pose
these conflicting interests for us. The real question for us I think is
whether or not, first in limited situations where there is a sensitivi-
ty such as you have described, the leadership, this handful of eight
people, can be trusted with sensitive information and I guess my
question is do you have anything in your experience to indicate
that these leadership people cannot be trusted even with the most
sensitive information?
Admiral TURNER. No, sir. I certainly do not.
Let me say though that I would not have told eight people in the
CIA who were not involved in it. It is not a question of are they
Members of Congress, it is a question of looking a person in the eye
and saying I am going to tell even one person who isn't involved in
this in a way that is necessary to support your activities.
I would also point out that it can get much more complicated, as
it was in the three cases I cited. First of all, I didn't have the
option of informing only eight people at that time because the In-
telligence Oversight Act of 1980 had not been passed. So I would
have taken my chances if I had gone to the Chairman and Ranking
Minority Members of the two intelligence committees. Would they
have agreed that only they would have responsibility for knowing
that?
But in that case, we had another curious connection because the
President under the War Powers Act had not informed the Armed
Services Committees or the Foreign Relations Committees that
there was a rescue operation contemplated. We were a subsidiary
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supporting part of it. Had we come to the intelligence committees
or the eight leaders of the Congress to inform them that the intelli-
gence committee was participating in supporting a military action,
surely the other committees would have had to have been included
too. The number of people informed would have ballooned to at
least 16 at that point.
Again they are the 16 top people in these areas of the Congress.
They are reliable. We are foolish if we say the Congress cannot be
trusted at all, it always leaks. We are equally foolish if we say that
the Congress never leaks. Even though I think the Congress has a
better record than the Executive Branch as far as leaks is con-
cerned, the Congress does leak. The Executive Branch leaks more.
But it isn't a question of a better record here when a man or
woman's life is at stake. Even if you are 10 times as reliable as the
Executive Branch, if the leak did happen to come from one of the
people notified in the Congress, somebody may have lost his life un-
necessarily.
Mr. LIVINGSTON. There has been some discussion about the time
limits and I think Mr. Hyde said split the difference between 14
months and 48 hours. I know you have said it facetiously.
Is this legislation any more palatable if you extend the deadline
for notice and actually set an arbitrary time limit, be it 48 hours, a
month, two months, six months, 10 months, a year, what have you?
Does it become more palatable or do your objections still lie?
Admiral TURNER. My objection still lies. I don't think 14 months
is illegal or unreasonable. I think taking that loophole was wrong
in the first place, but if the President's reasons for not notifying
the Congress in an instantaneous manner were correct, 14 months
is not to me untimely. The timeliness is not measured by a clock.
Timeliness should be measured by the risk. I waited three months
in one of the cases, and we were three months getting the six
people out from the Canadian Embassy. We were six months doing
the other two operations I mentioned to you.
So I don't think we should focus on hours and days. I think we
should focus on diminution of the risk. It could be that as an oper-
ation goes along the risk to human life drops off but the operation
under the Finding is still continuing. That would be the point at
which that the Executive should come to Congress. When that risk
to human life is diminished sufficiently is when it is timely to
notify the Congress in my opinion, sir.
Mr. LIVINGsTON. Mr. Colby.
Mr. COLBY. I would basically concur. I would not limit it only to
the human life problem. There are many other things. People take
risks with their lives for various reasons and don't get very upset
about it, but there are other things that are of more importance
than the human life of some of our people. They understand that
when they go into the business. They know that.
I do think that the one answer to the question is that the timely
fashion is obviously a general word requiring a judgment, but to
respond to the Chairman's example of the discussions with Colonel
North and Mr. McFarlane and others about that, there is a statute
that makes it a criminal offense not to fully inform the Congress.
This has been very rarely used but in the case of a direct contra-
diction of the truth I think that is something that the independent
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counsels will be looking into. In other words the question is, is
there a remedy? The answer is yes, there is a remedy. It is for a
violation of the law and there it is.
Mr. LIVINGSTON. Mr. Cline.
Mr. CLINE. I simply concur in the view that defining timely fash-
ion in a number of hours or days or months is a Solomon's exer-
cise, a paradox. It cannot be resolved by this committee or by any-
body else. It depends on these complex factors that my colleagues
have mentioned.
I think discussing it is wise. I think trying to cut the Gordian
knot with a slice of the sword is not a wise decision and I can defi-
nitely visualize operations where the success factor is prolonged.
You don't know. It will be a long time to get blocks in place
before you get the final result, and the risk might be very great for
many, many months.
So I don't even agree with the 14 months. There would be cases
in which that time was not the objectionable feature, and I think
the objection to the handling of the Iran issue is not over the time-
liness, it is over the fact that there was a difference of view about
the operation itself.
Mr. COLEY. Frankly I think in some cases you might get a situa-
tion where if you have the timely fashion requirement to inform
the eight individuals listed, that if the thing began to get at the
edge of the timely, I could envisage a President talking to the
Speaker and the Ranking Minority Member only and trying to get
their acceptance of not going any further with it. I don't think you
can write that into the law, but it is clearly what Admiral Turner
was referring to that he didn't feel he could do at that early time.
Mr. LIVINGSTON. Mr. Colby, you mentioned you saw situations
that might mandate the withholding of information from Congress
in other than life-threatening situations. Could you elaborate on
that. Could you give us a couple of examples?
Mr. COLEY. You could have a highly sensitive penetration into
some terribly important situation which took you months and
months to set up and which could have a major effect on the politi-
cal direction of another country, an adversary country possibly,
and you just couldn't take any risk at all with that operation. It
would be a high stakes operation. If it didn't work you would lose a
great opportunity, but if it were revealed you would suffer a great
deal and your nation could suffer a great deal.
You might have a cause for war on your hands for all you know.
Mr. LIVINGSTON. Does the gentleman share that view?
Mr. CLINE. Yes, I do. Could I add another refinement which-
since we are really discussing this issue philosophically in an at-
tempt to understand it rather than coming to a solution, a covert
intelligence operation may well begin as an intelligence collection
effort of penetration. If you get a source in a foreign country who
will give you a lot of information and then you find out he can do
something politically, that is terribly important to your country, he
becomes a covert action source at that point and the exact time
when you lay on an operation becomes rather ambiguous.
So I feel we are trying to deal with a very fluid situation here as
if it were constitutional law. And it is not. It is a matter of execu-
tive judgment when a covert action begins.
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So I think we are just saying it is a very complicated thing, and
there may well be good grounds to reserve judgment on when to
notify the Congress.
Mr. LIVINGSTON. If this legislation were' passed as is, would any
of you or all of you anticipate any instances in which you might
refrain from undertaking some dangerous but very important intel-
ligence activities because of concerns about participants' safety or
for the other reasons you have cited?
Mr. CLINE. I wanted to suggest there might be a chilling effect on
planners and decisionmakers thinking perhaps that they had a per-
fectly legitimate intelligence objective which might turn into a
very great covert action opportunity but, say, oh, my God, if we go
down and explain this today it will be washed out or it will be
blown, we shouldn't do it.
Yes, I would think you might well miss opportunities with that
kind of thinking. It is not so much the language you are putting
across, but the attitude that, the watchdogging of the sensitive and
difficult operations might cause people to refrain.
Mr. COLBY. We would once again have to go around and hold the
hands of our agents, of our liaisons, as they say, well, now, wait a
minute, the Congress is going to demand knowing everything you
do within 48 hours, are you kidding? We are not going to get in-
volved in that with you. Not a chance.
We had quite a problem with that when the first congressional
review came up, and we sort of wobbled our way through it, but it
is still there with some countries. Some countries still have a reser-
vation because some of them don't have the same high respect for
the membership of the committees that we do.
Admiral TURNER. The problem will be that we won't know which
covert actions are not proposed by the professionals, because they
have this concern inside. The people at the top won't hear about
them I am afraid.
Mr. LIVINGSTON. Thank you.
Chairman McHuGH. Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman. Let me at the outset ex-
press my appreciation to all three of our panelists, three very dis-
tinguished gentlemen who appear here this morning.
Mr. Colby, let me ask you, you made the statement that there
are things that Congress does not need to know. You do not include
in that category, do you, illegal or criminal activity.
Mr. COLBY. No. That provision I think is clear that if anything
illegal or improper comes up the requirement is to report it and
there are no if s, ands or but s about that one.
Mr. STOKES. In terms of Iran, and the Iran situation, how would
you classify that? Something that Congress needed to know or
should not have known?
Mr. COLBY. I think that I would go back to the point that what
Congress doesn't need to know is the details of a policy program, a
policy operation. It should know about a general policy and I think
the general policy of selling arms to the Iranians is something that
the Congress should know about. They don't have to know who the
intermediary is. That is really a detail that is beyond them.
Mr. STOKES. Sources and methods you mean?
Mr. COLBY. Yes.
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Mr. STOKES. But the general policy they should be aware of.
Mr. COLBY. The general policy that you are going to go right
against your overtly expressed policy I would certainly say, you
better check that one out. We have had covert actions in the past
which have contradicted the impression we have given to different
countries, but those you can explain to Congress and if they make
sense, the Congress will buy it.
If it doesn't make sense the Congress will object to it.
Mr. STOKES. Well, basically I think that is what we are trying to
keep intact and that is what all of you have addressed and that is
the special relationship between the Executive Branch and the
Congress, based upon some degree of mutual trust and forthright-
ness and candidness, and it is difficult for us to conceive of a situa-
tion where, when we talk about the Gang of Eight for instance, we
are talking about the Speaker of the House, the Majority and Mi-
nority Leaders of the House, the Chairmen of the Intelligence Com-
mittees and similar officials on the other side.
It would seem to us that these are highly responsible positions,
people obviously concerned about the national security of the
United States, not irresponsible people. It would just seem that if
the President, because of the high risk of some type of adventure,
or high risk of human life, felt that he could not tell both intelli-
gence committees that at least the Gang of Eight so to speak would
be given this information, and I would think we would all look at
them as being responsible individuals who would not be leaking
highly sensitive information or data that would possibly cause the
loss of human life.
Let me ask you this, Admiral Turner. In your opinion in those
three cases you cite-and they are three very classic cases, very dif-
ficult to argue with-as has been stated by Chairman McHugh, but
what in your opinion would have been reasonable knowledge as-
suming we had timely notice in the law at that time. What in your
opinion would have been timely in reference to those matters?
Admiral TURNER. When my agents, came out of Iran, [who went
in to support the Canadians six], were aboard the airplane and on
their way home, for instance.
Mr. STOKES. The Canadian six matter you were able to accom-
plish within about 48 hours, weren't you?
Admiral TURNER. No, the agent who went in stayed in Tehran
about a week, but we were three months or three-and-a-half
months before that preparing it, working with the Canadians, pre-
paring the documentation, the cover, the new personalities, new
jobs, new identities for these individuals, and getting that training
done so the six knew who they were and why they were in Iran, so
they could answer questions when they came out.
You know about the one who got quizzed on his passport, Mr.
Stokes. A Custom inspector said, "I notice your middle initial is H,
and you are on a West German passport, and I have never seen a
West German passport in which the middle name wasn't spelled
out." And this State Department employee with great resourceful-
ness looked up and said, "Yes, you will notice I was born in 1935: I
am ashamed of my middle name-Hitler."
That is a true story.
76-195 0 - 87 - 3
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Mr. STOKES. That is a good one. My last question to the three of
you would be this: I am reluctant in terms of the criteria or stand-
ard of risk to human life to accept that as sole criteria. What we
are talking about is a subjective evaluation made by the President,
and it is very difficult, if we set that up as the criteria to be sure
that that criteria is always used because it is subjective, because
the President could very well substitute for it political risk, as I am
sure probably the decision was made in terms of Iran more than in
an terms of an risk to human life.
It was more the political risk. How do you. see that?
Admiral TURNER. Oh, it is a danger. The present Administration
when first justifying not notifying the Congress about the CIA role
in the Iran affair, did claim human life. They claimed that the
lives of the hostages held in Beirut might be jeopardized if it came
out the United States was collaborating with Israel to get the hos-
tages out. There is undeniably a shred of argumentation there, but
I think it is not more than a shred, sir. So, yes, I think we are all
three trying to say, that there is no way to legislate these boundary
lines without the risk of pushing yourself up against an unreason-
able position.
You have to have reasonable men there as well as here to inter-
pret them.
Mr. COLBY. As I said, I think the risk to human life is not the only
judge, should not be, but the Congress' control on this is the re-
quirement that the President explain why he delayed. Either that
explanation will be accepted when it is given or you will have a
challenge to it. It will be an after-the-fact challenge but it is none-
theless a requirement that he justify to the Congress the fact that
he did not pass over that information.
And that is why I suggest that a president will probably seek
some middle ground between informing all 8 and yet not telling
anybody. I think that the pressures on him will be, well, eight
people is a lot of people; and that you learn in the Executive
Branch when you find out how many people are in on a secret it
becomes such a small secret in the in-group despite the loyalty of
all the people in the group, it becomes a general conversation
among them and it begins to slip out to secretaries and assistants
and all that sort of thing.
Just inevitably that happens. So the attempt would be made to
limit it to those eight.
Mr. STOKES. Mr. Cline.
Mr. CLINE. I would add two comments. I think the very valuable
role; of these two committees is to keep the Executive Branch ad-
vised of what seems sensible from a point of view of stratelgic co-
herence and continuity. You should be advising on broad issues,
not exactly whether someone's life is at risk or not because those
are very professional and subjective judgments.
I hope that there will be a greater receptivity to advise back and
forth on these matters. I believe it can happen as I say. In earlier
days I think we had a better understanding between the Congress
and the Executive people and the intelligence people, and it
worked pretty well.
The second thing though relates to the later comments. With all
respect I want to tell you that the Congress is a tremendous target
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for the release of unauthorized information. Everybody in this city
is trying to get you Members who have secrets to disclose them,
and the more your heads are full of details about operations that
should not be disclosed, the more in hazard you and your staff
members and people who, even though invited to speak as guests
on some of the subjects discussed, are likely to be tripped up or
trapped, not only by foreign intelligence agents of which there are
hundreds wandering around Capitol Hill all the time, but by the
most expert espionage group in town, the U.S. Press.
Journalists do everything that intelligence agencies do to try to
elicit and if necessary, in somewhat unusual irregular fashion, get
someone to disclose things off the record that they should not dis-
close.
So you are an important target and I think you ought not to look
at suggestions that the congressional committees leak as a kind of
moral and personal issue. That is certainly true of the eight men
you were talking about.
Everyone assumes they are extremely conscientious and patriotic
and all that. But they probably should not have in their heads in-
formation that as my colleague suggested, that they don't really
need to know to do this broader job, advise the President in a
proper congressional role on the broad issues of our national policy.
Mr. SToxES. Thank you very much.
Thank you, Mr. Chairman.
Chairman McHUGH. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
I think we can agree, too, that disclosure by Congress or Execu-
tive people sometimes is innocent. It cannot be, needn't be mali-
cious but inadvertent. If you know something-once, I confess I
made a statement on the floor about a specific matter that was
secret and I didn't realize what I had said or done until the press
called me and asked me if I really meant what I said, and it sud-
denly dawned on me that I used a number, it would cost so much
to accomplish a certain thing, and that was classified.
So that is part of the problem.
The Canadian Embassy, I dare say would just as soon this never
got disclosed in many ways, at least the people that still have to be
over there inside Iran.
Mr. CLINE. That is right.
Mr. HYDE. Although the people who are heroic I am sure had
mixed feelings about having their heroism kept under a bushel.
But I can understand where sometimes these things just as soon
never get disclosed and everybody is the happier.
Also on the Iran thing, Admiral, I would think that in addition
to the lives or maybe it was you, Mr. Colby, the lives that the Ad-
ministration used as justification were those of the hostages. The
involvement of a third country participating might have been an-
other reason for keeping this quiet.
I think we can agree we need mutual trust between the Execu-
tive and the Hill. There is a lack of mutual trust between the Exec-
utive and the Hill. We have some justification for questioning the
forthrightness of some of the things we have heard from the Ad-
ministration as well as some of the things we have not heard from
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the Administration. But the Executive, too, has a lot of justification
for being skeptical about our ability to keep a secret.
Once more, I sound like I am promoting your book, Mr. Colby,
and I am
Mr. CoiaY. Thank you.
Mr. HYDE. Page 423,
Thus by mid-1975 appearances on the Hill had become a pervasive aspect of my
job as DCL I was going up there to report on every new step taken in the Angolan
issue, Kurdish issue and other current operations underway as well as testifying on
practically everything the CIA had ever done during the last three decades to the
select committees investigating intelligence.
Here is the important part,
Sadly the experience demonstrated that secrete if they are to remain secret
cannot be given to more than a few Congressmen. Every new project subjected to
this procedure during 1975 leaked and the covert part of CIA covert action seemed
almost gone.
I have been unfair somewhat, unintentionally, to Admiral
Turner because you too have a great book, "Secrecy and Democra-
cy.
Admiral TU1tNzR. Thank you, sir.
Mr. HYDE. I am chagrined that I don't have it with me today. I
will have it next week.
Mr. C1axx. Point of order, Mr. Congressman, I have several books
and you haven't mentioned any of them.
Mr. HYDE. The reason yours are not here, Ray, is they are too
heavy Bt Iwo d like to ask-I want to thank you, Admiral Turner,
for your great testimony and I am sorry you left out the parts you
did because I thought they were excellent as well and I hope every
member of this subcommittee will read the classified annex as well.
I thank you for your letter to me of January 27th last year sup-
porting the concept of a joint intelligence committee and I would
like to offer this letter in the record if I may to be a part of this
record from Admiral Turner supporting that.
Chairman MCHUGH. Without objection.
[The letter referred to appears in Appendix I.]
Mr.* HYDE. I have another letter from Richard Helms, comment-
ing on H.R. 1013, and also supporting the joint committee concept
rather strongly. I would like to offer that for the record.
Chairman MCHUGH. Without objection.
[The letter referred to appears in Appendix J.]
Mr. HYDE. And I would like to ask you, Mr. Colby, if you also
support the notion of a single select committee on intelligence,
made up of Senators and House Members, smaller staff, smaller
membership, select people, if that might not facilitate this develop-
ment of mutual trust and confidence and disclosure that we all rec-
ognize we. need.
Mr. CoLBY. I fully support it and I very much applaud you for
the effort to launch it. Thank ou.
Mr. HYDE. Thank you. And Ray Cline, you have already fortu-
nately initiated mentioning it, and I take it you have not changed
your mind in the last few minutes.
Mr. CuNE. No, you have not dissuaded me. I think it is a good
idea. I would also like to add this, though, I think the two separate
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committees can do a good job and that is why I feel it is so impor-
tant to develop that better spirit of cooperation on the intelligence
planning that we all spoke about.
Mr. HYDE, Thank you.
I thank you, Mr. Chairman. You have been most kind and indul-
gent. I am not a member of this subcommittee and you have per-
mitted me to be here. I appreciate that.
Chairman McHUGH. It is always a pleasure to have you, Mr.
Hyde, although I sense a campaign under way here for a joint com-
mittee.
Mr. HYDE. Two years now. This is the third year.
Chairman McHUGH. Mr. Kastenmeier.
Mr. KASTENMEIER. Thank you, Mr. Chairman. You have all three
been coopted by Mr. Hyde, I don't know what we can say other
than to say this about the joint committee. It might be thinkable at
some particular point in time, but I suggest that it is not now
thinkable. If two separate committees cannot render proper over-
sight, one surely won't. That has been the problem throughout, as
a matter of fact. A joint committee is one step away from extin-
guishing all committees of the Congress from intelligence oversight
and I understand that as well as anybody else.
But to the extent that we still do exercise statutory or constitu-
tional authority with respect to these matters, I am a little discour-
aged by your opposition or such highly qualified acceptance of any
statutory change that I see very little grounds to pursue the
matter. But I do think in the light of what has been said and
noting that Admiral Turner suggested he was interested in what
steps to make oversight more vigorous and effective, and as the
Chairman has pointed out far more sharply than the gentleman
from Illinois, we have had a couple of real instances, major in-
stances in which we have been lied to. And let us assume that
these are not unique in the last year or two. Let's assume that.
What Admiral Turner, is our alternative here?
I suggest to seek some sort of mutual trust is not effective. What
action can we take to prevent that sort of destructive relationship
in which we know we are lied to and have presumably no recourse.
What recourse should we have other than to change this particular
statute?
Admiral TURNER. Mr. Kastenmeier, with all respect I think, and
I used the word in my testimony, the committee can be more rigor-
ous in pursuing whether the Executive Branch is telling them all
and telling them honestly.
In this instance, long before August 1985 when it came out that
Colonel North was doing something in support of the contras, it
seems to me there was evidence that it was not a spirit of coopera-
tion on the Executive Branch side with respect to oversight of in-
telligence. Therefore you had cause to be suspicious when the
President's own right hand men denied something that was obvi-
ous. What they were telling you is that they were doing this within
the law but it was obvious they were doing it against the spirit of
the Congress of the United States, against the spirit of what the
people of the United States through the Congress had mandated,
that is, no governmental support for the contras.
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Was there any question in anybody's mind that Colonel North
was doing that? I don't think so. I remember being incensed at the
time that nothing was being done in the media or in the Congress
to stop this. And I am sorry, Mr. Chairman, there is an old athletic
saying that I learned one time when we fought Notre Dame to a 6-
6 tie. We ended up, with a goal line stand that we thought was
heroic, we charged into the locker room very enthusiastic about
our performance. The coach looked at us and said, "Gentlemen,
long after the deeds have been forgotten, the score will be remem-
bered; you men tied. And with respect, sir, the answer was did you
get to the bottom of the case and you didn't.
The score is what we remember, and I think you have to be more
rigorous. I would say with all candor that in my four years when I
think we had a very cooperative relationship, I believe the commit-
tees of the Congress could have been more rigorous with me. I
would have appreciated it in many ways. Rigorous in paying less
attention to the details of my budget, and $50 here and $100 there,
and more in asking "Turner are you going in the right direction?
What are your plans for the future? What is your track record on
how you used your resources over the last ten years, let's say in
developing your recommendations on Iran."
After the debacle on Iran, somebody from the Congress should
have said, "Let's go back 10 years, Turner, and trace what you said
to people about this, what the whole Community said and trace
whether your sources were good, that you were relying on ten
years ago. What are you relying on now?'
I think there is a lot more that you can do if you will take a
longer range look at what our intelligence needs, sir, and it would
be helpful if you are probing and rigorous.
Mr. KA$TENMEIER. I gather you wouldn't suggest a tighter reign
with respect to the budget in the process?
Admiral TURNER. No, I would suggest a looser reign in many
ways, particularly in the R&D field where I think they need more
freedom to go out and invent the U2 again which was done in a
skunk works with nobody looking over their shoulder. And I am
worried today whether we have the inventiveness needed to keep
us one step ahead of the opposition in the technical field.
Mr. KASTENMEIER. Mr. Colby, what would you recommend?
Mr. COLEY. I have already mentioned one, if you find a case
where somebody actually lies to you there are provisions of law by
which that person can be prosecuted. There are ways to do it. I
think it is a matter for the committee to take a look at and see
whether there is a recommendation that action be submitted to the
Justice Department to follow up on such a case.
Second, traditionally this is the house which has control of the
purse .and while I agree fully with Admiral Turner that fooling
around with $50 here or there is not the point, the fact is that a
Congressman once asked me exactly this question. You come up
and tell us one of these things, what do we do about it? I said well,
you have everything you can do about it. You can express opposi-
tion individually, you can get a majority vote of the committee
against it, if necessary you can do as Chairman Boland I think so
brilliantly did, develop a resolution of the Congress which circum-
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scribes without revealing the specifics, circumscribes the ability of
the agency to conduct the activity.
That was done to me on Angola and it was done to Casey on
Nicaragua. If you find people getting around that, I always thought
that there was a way you could catch the attention of the Direc-
tor's mind fairly quickly. Just say, well, Mr. Director, you just keep
on going on that but you take your little notebook out and put the
figure $10 million down on it because $10 million is coming out of
next year's budget, and I don't care where you distribute it but it is
coming out. That will catch his attention.
That is the power of the purse. It is part of the constitutional ar-
rangement. The Congress is not helpless. It has power.
Mr. KASTENMEIER. Thank you, Mr. Chairman.
Chairman McHuGH. Mr. Beilenson.
Mr. BEILENSON. Thank you, Mr. Chairman.
There has been a lot of comment about the 48 hour requirement,
whether or not that is proper or adequate or useful, but let me go
back to basics for just a moment. I am not sure at this point about
the feelings of each of our three witnesses with respect to the cur-
rent requirement of the law that the Congress or portions of the
Congress be notified.
Are you supportive of that, of the existing law or are you arguing
against extending it or making the requirement more specific than
it is, the 48 hours?
Mr. Couw. I support the current one, yes, sir.
Admiral TURNER. Yes.
Mr. CLINE. I do, too, and specifically because it has a certain
flexibility.
Mr. BEILENSON. What are you all so exercized about? Is it the 48
hours? Is that all we are talking about, 48 hours instead of timely
fashion?
Mr. CoLSY. It is making the whole process rigid rather than re-
flective of the real world.
Mr. CLINE. Right.
Mr. BEILENSON. But when you start talking, and I am talking not
to you so much, Mr. Colby, but to the other two, you don't want
timely fashion or 48 hours or anything else. I am not sure we are
focusing on something that is useful.
Mr. CLINE. The present law gives certain grounds we have estab-
lished for withholding either permanently or temporarily notice.
All intelligence operations for the purpose of collection of informa-
tion are excluded. You pointed that out. So this is not a cut and
dried proposition. The present law takes into account exceptions to
notification, it mandates timely notification on covert action oper-
ations. It doesn't define timely.
Mr. BEILENSON. I think it is the posture of the authors of the bill
they are not proposing anything terribly radical. They are in effect
trying to require that the requirements of existing law are com-
plied with by saying, all right, you folks don't seem to know what
timely means, so we will tell you. It is 48 hours. We can agree
maybe it is something other than. 48 hours. I am trying to get a feel
for if you are offended by the requirements of the existing law or
whether it is the 48 hours?
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Mr. Cot.BY. It is the 48 hours because there are situations where
we both mentioned which would be far beyond 48 hours.
Mr. BEILENSON. Let me go on if I may, Mr. Chairman, I am just
trying to-since this is the legislative subcommittee and like Mr.
Hyde I apologize ' I am not a member of this distinguished subcom-
mittee-1 wish I were-I think the question for us and for the full
committee eventually, is whether we should be changing the law
and if so, how we should change it.
We have had useful suggestions, witnesses have tried to give us
helpful suggestions. Admiral Turner spoke about this risk of life
criteria and putting one's life on the line. Some have suggested
that may not be a terribly useful criteria and certainly not the sole
criterion.
As I mentioned earlier, and I think perhaps others have, we are
aware now of a number of intelligence operations which we cannot
even describe in which people's lives are on the line right now. We
all know about them. All of you on this committee. So that cannot
be the sole criterion.
We have discussed that it does not include under existing law in-
telligence gathering operations. If we were to be parachuting Mr.
Colby into the Soviet Union perhaps instead of France--
Mr. CoisY. I would rather not.
Mr. BEILENSON. I understand. We are not really talking about
that either.
Mr. Colby suggested something, a criteria which I personally
found more useful and that is the need to know. It is not even so
much need to know but I guess should we know, should Congress
know about these sorts of things just in terms of the common sense
approach to it.
We go back to the examples that the Admiral gave, all of which
were hostage rescue related, things that I again personally suggest-
ed earlier I don't think we need to know, don't particularly need to
know or care about knowing, but you can say under Mr. Colby's
criteria should we know, no, we don t need to know.
This is a bigger thing; we are not talking about sending people
into the desert and rescuing hostages, and it will be all done in 48
hours. We are talking about big policy changes. Everybody has
agreed to that. Under Mr. Colby's suggested criteria, should we
know or need to know, I would agree in terms of applying it to the
three examples, the only three the Admiral gave to us, we don't
need to know. You guys don't need to tell us. Go ahead, good luck,
we hope it turns out all right.
But you get to other things, especially policy-related things, and I
think we are talking about something else. What worries me, Mr.
Colby, my friend, is the example you started giving that made me a
little uneasy because you started talking about penetration for po-
litical purposes. Mr. Cline was talking about various opportunities
which might be lost if the folks in CIA and elsewhere knew a cer-
tain number of folks had to be told.
Now you are raising some warning flags it seems to me. Are you
talking about getting someone involved in somebody's government
who may have something to do with eventually overthrowing that
government? Why shouldn't those policy-related things not be told
to the eight Members under the existing law?
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Mr. COLEY. Mr. Beilenson, I think your points are well taken. I
fully supported the effort by this committee some years ago to try
to write a new charter for the Intelligence Committee and I think
we all kind of gave up on it. It was so complicated and so difficult
that the thing just kind of disappeared and it has been replaced by
these individual actions, all of which I fully agree, of amendments
to the existing law correcting problems that have arisen from time
to time.
I think you get the same thing when you try to explain a need to
know. If you try to define a need to know you get a very great dif-
ference of opinion by different onlookers as to what he needs to
know and what he doesn't. And it immediately gets transferred
into do you have faith in me, which is not the question. The ques-
tion is does he have a need to know. Then how can you define that?
Clearly one side of it is a clear policy change. The other side of it
is the identity of the agent. Now, sometimes the mere insertion of
an agent can create a policy problem. I went to Henry Kissinger
one time and said that I knew he was engaged in a very delicate
negotiation with a foreign country, at the same time we had hopes
of recruiting an officer of that country, and I just wanted to make
sure that if it blew up in our face as you have to anticipate, that
he, that it wouldn't upset his thing. He said go ahead. You do your
business, fine.
But at least I was sensitive to the fact that he did need to know
that there was a very substantial risk to his policy being adopted
in the actions I was taking. That was a mere agent recruitment
issue and if you try to define it in words, I think you would have a
very difficult time with it.
Mr. BEILENSON. The more you talk about these things, the more
you come to agreement even though one might start from a differ-
ent side, pretty much exactly you come to at it is we ought to be
told about.
On the particular instance about which you were speaking, of
course we shouldn't know. On the hostage issue, I would say to my
friend, Mr. Hyde, that we are talking about a vast change in policy,
not only with respect to supplying arms for hostages but quite dif-
ferent from the problems Admiral Turner faced where we had
some Americans who were posted over there by their government
who were serving us and as to whom we had every responsibility to
do what we possibly could to help them out or get them out, even if
it had to be by rescuing them.
From was a whole different policy, and the Congress should have
been consulted and was not.
With respect to the more recent Lebanon situation where you
have private American people who had, to be blunt about it, no
business being over there and the President of this country had no
business holding hostage the foreign policy of this great country of
230 million people because of Americans not sent by us, not serving
us in the CIA or State Department who decided they wanted to go
to Beirut for their own good purposes-which is fine and good. We
should help them if we possibly can. But it is a totally different sit-
uation than the one the Admiral faced in my opinion.
Mr. HYDE. Would you yield.
Chairman McHUGH. Mr. Beilenson's time is about up. Go ahead.
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Mr. HYDE. Can I make a point for the record. The book that has
been admirably prepared by your staff and given to all of us to dis-
cuss this suggested new bill has an interesting paragraph on page
9, Executive Branch practice:
As far as we know, since enactment of the Oversight Act in the fall of 1980 the
Committee has been given notice prior to implementation of all findings except for
the January 17, 1986 Iran Finding.
In addition, as far as we know all covert actions carried out since 1980, again with
the exception of the pre-January 17, 1986 Iran arms transfer activities, have been
the subject of findings. There has been one occasion since enactment of the Over-
s~ght Act when prior notice was given only to the Chairman and Ranking Minority
Member of the Committee and one occasion when notice was limited to the desig-
nated leadership group.
So I think that sets the context, the environment for this hearing
that we are talking about one aberrational, and I concede aberra-
tional act by the Administration, the Executive, and I just wonder
if we are not overreacting.
That is the point I wanted to make. Thank you.
Chairman McHUGH. Thank you.
I think this has been a very helpful discussion and I think the
dialogue between the panel and Mr. Beilenson has been :T of interesting. I assume, based on what has been said that all of you
agree that the intelligence committees of the Congress, or in some
limited cases the Gang of Eight should be advised about any policy
change, albeit in covert form, when that is decided upon by the
President.
Mr. CoLBY. Yes.
Admiral TURNER. Yes.
Mr. CLINE. Yes.
Chairman McHuGH. All of 4'ou agree with that. All of us would
agree, Mr. Cline, that we don t have to have our heads full of all
the details of every single covert operation. That is the other ex-
treme.
As Mr. Beilenson has said, we don't need to know all of that. It is
the policy formulation that really is the critical area. The frustra-
tion some of us feel in this particular case at least, and I think that
some of the Senators felt on both sides of the aisle in the case of
the mining of the harbors of Nicaragua, is that when you have an
Administration some of whose members are prepared not to tell
the truth on policy issues, you have an Administration that will
read timely notice in a very liberal way to say the least.
Now as you said, Mr. Colby, you can punish people who lie to you
about policy matters but there is not much resource available to
us, as Mr. Kastenmeier said, where a President and his Adminis-
tration chooses to disregard timely notice, because as you said, Mr.
Cline, it is a very flexible term and therefore the remedy for us is
very difficult. It is out of that concern that this bill is before us.
I think you have all raised some interesting points and I think
have helped us to wander through this difficult issue. I am sure I
speak for all the members of the committee in thanking you for
being with us.
Mr. HYDE. Thank you.
Chairman McHUGH. I would like before we adjourn to ask unani-
mous consent to insert in the hearing record letters concerning
H.R. 1013 that the committee received from Cyrus Vance,
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McGeorge Bundy and Admiral Turner, two memoranda concerning
the constitutionality of a prior reporting requirement prepared by
Mr. Ray Celada, Senior Specialist in the American Law at the Li-
brary of Congress, and letters to the committee from Professor Wil-
liam Van Alstyne, Duke University Law School and Professor Lau-
rence Tribe of the Harvard Law School.
[The documents referred to are in the Appendix.]
Chairman McHUGH. Again thank you to all the witnesses from
our colleagues on the Committee. The Committee will adjourn now
and convene its hearings next week at this same time.
[Whereupon, at 12:30 p.m., the Subcommittee was adjourned,
subject to the call of the Chair.]
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H.R. 1013, H.R. 1371, AND OTHER PROPOSALS
WHICH ADDRESS THE ISSUE OF AFFORDING
PRIOR NOTICE OF COVERT ACTIONS TO THE
CONGRESS
WEDNESDAY, APRIL 8, 1987
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON LEGISLATION,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:07 a.m., in Room
2203, Rayburn House Office Building, Hon. Matt McHugh (Chair-
man of the Subcommittee) presiding.
Present: Representatives McHugh [presiding], Stokes, Kasten-
meier, Livingston, Shuster and Lungren.
Also Present: Representatives Beilenson, Hyde and McEwen.
Staff Present: Michael J. O'Neil, Chief Counsel; Thomas R. Smee-
ton, Associate Counsel; Jeanne M. McNally, Clerk; Bernard Raimo,
Jr. and Stephen Nelson, Counsel; Martin C. Faga, Richard H. Giza
and Diane S. Doman, Professional Staff Members.
Chairman MCHUGH. The Committee will please come to order.
Today is the second day of hearings on the issue of whether ex-
isting law is adequate to assure meaningful congressional oversight
of covert operations and more particularly, whether amendments
to the law are necessary to clarify congressional intent with re-
spect to presidential notifications to Congress of covert operations.
Under current law, the President is required, as a general rule,
to notify the Intelligence Committees of the House and Senate
prior to undertaking a covert operation that he has authorized.
However, the law recognizes two limited exceptions to this general
requirement. The first permits the President to restrict prior notice
to a leadership group of eight Members of the House and Senate
where the President determines that such restricted notice is es-
sential to meet "extraordinary circumstances affecting vital inter-
ests of the United States."
The second exception recognizes that in certain undefined cases
the President may withhold prior notification, but in such cases
the law requires the President to provide the Intelligence Commit-
tees with notice "in a timely fashion" and with a statement ex-
plaining why prior notice was not given.
The Subcommittee has before it two bills that would amend cur-
rent law, both of which were introduced in the wake of disclosures
that the President had authorized the covert sale of military weap-
(73)
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ons to Iran. In that case the President conducted his covert policy
for as long as 14 months without providing any notice to the Intel-
ligence Committees or to the leadership group of eight.
Many of us in Congress believe that in this respect the President
utterly failed to comply with existing law, the effects of which in-
cluded depriving Congress of its right and responsibility to exercise
oversight of a significant intelligence activity. It also deprived the
President of informed advice that might have helped him avoid a
policy which has caused substantial damage to U.S. interests.
One bill before the Subcommittee, introduced by Mr. Mineta of
California, would require prior notice of all covert operations. The
second bill, introduced by Mr. Stokes of Ohio and others, would re-
quire prior notice in virtually all cases, but would permit the Presi-
dent to withhold such notice in situations where time is of the es-
sence and there are extraordinary circumstances affecting the vital
interests of the United States.
However, even in those limited circumstances, the President
would be required to notify the Intelligence Committees within 48
hours after the covert action has begun. Both bills would preserve
the President's right to restrict prior notice to the leadership group
if there are extraordinary circumstances affecting vital interests of
the United States.
At our first hearing last week the Subcommittee heard from five
distinguished witnesses on thus subject. They were the Speaker of
the House, Jim Wright; and House Minority Leader, Bob Michel;
two former Directors of the Central Intelligence Agency, William
Colby and Stansfield Turner; and Ray Cline, a former Deputy Di-
rector for Intelligence at CIA. Speaker Wright strongly endorsed
the Stokes bill, claiming that the Iran case demonstrated that cur-
rent law should be amended to make clear that withholding prior
notice can be justified only in extraordinary circumstances where
time is of the essence, and that timely notice after the fact would
permit a delay of no longer than 48 hours.
The other witnesses, while conceding that President Reagan
failed to give timely notice in the Iran case, urged that current law
be retained so as to afford the President necessary flexibility, par-
ticularly under circumstances involving a risk to human life.
The Subcommittee is fortunate today in having another group of
very distinguished witnesses. Nye appreciate their taking the time
to be with us to share their views, and we look forward to their
testimony.
Before calling our first witnesses, however, I would like to ask
Mr. Livingston, the Ranking Member of this subcommittee, if he
would like to deliver any preliminary comments.
Mr. LIVINGSTON. Thank you, Mr. Chairman. I have nothing
formal but simply to say that I look forward to hearing the wit-
nesses today.
I mentioned at the outset of the hearings last week that I was
concerned that any hasty action by this committee or by the Con-
gress to react to the events of the Iranian situation might further
complicate the ability of the President as the Commander-in-Chief,
and this nation to carry out a foreign policy which meets with the
security interests of the United States, and frankly the witnesses
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that appeared last week really didn't do much to dissuade me from
that position.
I realize that we are going to have witnesses on the other side
today and I look forward to hearing their comments, but I am
again concerned that as I mentioned the old legal adage, bad facts
make bad law, that frankly we met with an extraordinary situation
in which the White House was dilatory in consulting with the Con-
gress on the Iranian situation, and just because of that, I just don't
yet see that we really should lead to the possibilities of changing
legislation to meet with that set of circumstances. W
I think that the current law so far seems to adequately govern
our needs. But let's hear the witnesses and let's go forward.
Thank you for your statement, I thought you very appropriately
set forth what was said. I look forward to working with you on this
matter.
Chairman McHUGH. Thank you, Mr. Livingston.
As I mentioned in my opening comments, one of the bills before
us has been introduced by the distincuished Chairman of our Full
Committee, Mr. Stokes of Ohio. I would like to ask Mr. Stokes now
if he has any opening comments this morning.
Mr. STOKES. Thank you very much, Mr. Chairman.
Mr. Chairman, I would like to make several points that I believe
were missed during the discussion of many hypotheticals at last
week's hearing.
First of all, the bills before this subcommittee and these hearings
are not meant to engender a discussion of whether or not Congress
should receive prior notice of covert actions. Congress decided that
in 1980. Since then, as has been noted, we have received prior
notice of all covert actions except the covert sale of arms to Iran.
Second, the 48-hour provision in the Stokes-Boland bill is not put
forth as the normal latitude for notification. Rather, as the bill
says, notification may be delayed for a maximum of 48 hours, in,
and I quote, "extraordinary circumstances affecting vital interests
of the United States, and only where time is of the essence. . . ."
The "extraordinary circumstances" language is the same as con-
tained in the existing statute for limited notice to the "Gang of
Eight"-and that provision has only been used once since 1980.
Further, the "time is of the essence" language means just that-
when the President, in the extraordinary circumstances noted
above, does not have time to provide prior notice. Clearly, the ex-
pectation is that this provision would be rarely, if ever, used; the
intention is not to give the President a 48-hour grace period for
covert action notification.
Further, I would note again my belief that H.R. 1013 is expressive
of the intent of the current law.
Senator Inouye, the first Chairman of the Senate Select Commit-
tee on Intelligence, discussed this point during Senate floor debate
on the Oversight Act of 1980, and I want to quote him: "The pur-
pose of this limited prior notice in extraordinary circumstances is
to preserve the secrecy necessary for very sensitive cases while pro-
viding the President with advance consultation with the leaders in
Congress and the Chairman and Ranking Minority Members who
have special expertise and responsibility in foreign policy -and intel-
ligence matters. Such consultation will insure strong oversight, and-
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at the same time share the President's burden on difficult decisions
concerning significant activities. I am of the firm belief that the
only time the President would not consult with the Intelligence
Committees in advance would be in matters of extreme exigency.
In my experience as Chairman of the Intelligence Committee and
as a member of that committee, I can conceive of almost no circum-
stance which would warrant withholding of prior notice, except in
those very rare situations where the President does not have suffi-
cient time to consult with Congress."
During the same debate, Senator Huddleston, the floor manager
of the bill, stated, and I quote him: "I myself believe that the only
constitutional basis for the President to withhold prior notice ...
would be exigent circumstances when time does not permit prior
notice."
During Senate consideration of the Conference Report on the FY
1981 Intelligence Authorization Act, which included the Oversight
Act of 1980, Senator Inouye stated, and I quote him: "I cannot con-
ceive of any circumstance which would require the withholding of
prior notice except where the nation is under attack and the Presi-
dent has no time to consult with Congress before responding to
save the country."
Finally, Mr. Chairman, I would also note, in response to the
point raised by the distinguished minority leader last week, that
the Stokes-Boland bill does not change existing criteria for provid-
ing the committee with notice of intelligence activities that are not
covert actions. Under existing law, the intelligence committees are
to be kept "fully and currently informed" of all intelligence collec-
tion activities, and are to be given prior notice of significant collec-
tion activities. The timely notice provision does not apply to the
latter.
Thank you very much.
Chairman McHUGH. Thank you, Mr. Stokes. We would like to
begin with two distinguished witnesses, Dr. Richard H. Shultz and
Dr. Morton Halperin. I wonder if you two gentlemen would be kind
enough to come to the table. Dr. Shultz is Associate Professor of
International Politics at the Fletcher School of Law and Diplomacy
at Tufts University, and a Fellow at the Hoover Institution on
War, Revolution and Peace. He has written extensively on such
topics as Soviet disinformation practices, international terrorism
and counterinsurgency.
He holds a Ph.D. from Miami University.
Our other panelist is Dr. Morton Halperin, Director of the Wash-
ington office of the American Civil Liberties Union. Dr. Halperin
obtained a doctorate in international relations from Yale in 1961,
was an instructor and then professor of Government at Harvard
from 1962 to 1966. He has served on the staff of the National Secu-
rity Council and as Deputy Assistant Secretary of Defense for
International Security Affairs.
We very much appreciate both of. you gentlemen being with us
this morning. I wonder if we might start with Dr. Shultz.
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STATEMENT OF RICHARD H. SHULTZ, ASSOCIATE PROFESSOR OF
INTERNATIONAL POLITICS, FLETCHER SCHOOL OF LAW AND
DIPLOMACY, TUFTS UNIVERSITY
Mr. SHULTZ. Let me say it is a pleasure to be here. When I began
to work on my testimony I tried to look back historically and it
seems to me over the last twenty years we have debated two points
about covert action, one is whether and to what degree it is appro-
priate for a democracy to undertake secret actions, and second and
certainly a related question and the subject of H.R. 1013, the
extent to which the President has constitutional authority to
employ covert action as an instrument of foreign policy.
In my opinion there are two problems I have with H.R. 1013.
First, the proposed amendment to section 501 National Security
Act of 1947 as contained in H.R. 1013 infringes on executive au-
thority. I think it goes beyond separation of powers and I will come
back to that.
The second problem I have is that in many ways it appears remi-
niscent of the way oversight proceeded during the mid-1970s and
the legislation produced at that time. You recall by the end of the
1970s, Congress itself was, felt impelled to modify the legislative
enactments of the mid-1970s.
When the framers created the Constitution, separation of powers
was viewed as a double-edged sword. It was supposed to prevent
power abuse but it also provided for the more effective exercise of
power by the different branches and this was apparent in the fram-
ers' deliberations over the role of the executive, particularly in the
national security and foreign policy arena.
While they argued that Congress had a role to play in foreign
policy, they nevertheless saw Congress as a deliberative and legisla-
tive body that was not best equipped to act quickly and with dis-
patch in serious international situations. This was left to the execu-
tive branch.
Now, I think that they also recognized that with changing times
and circumstances, separation of powers would vary and some-
times, a branch might increase its power, other times it will lessen
it a bit. It seems that the arena of-intelligence is a good example.
If you remember from 1947 to the end of the 1960s, Congress did
not actively pursue its oversight authority and there were reasons
for that that I mentioned in the testimony. The events of the 1970s
pushed the pendulum toward congressional-executive interaction
and away from Presidential dominance.
So congressional restraint turned into activeness. That was no-
where more evident than in the field of intelligence oversight.
Some believe, and I agree with this, that by the end of the 1970s
the pendulum had been pushed too far and this was reflected in
the Hughes-Ryan amendment which dealt with covert action. You
all remember the stipulations in the Hughes-Ryan amendment.
While it did not give Congress a veto over the President, and ex-
isting law does not give you a veto, the way the bill was construct-
ed one could argue there was de facto veto power for any Member
who disagreed with a particular covert action of the Executive. So
Hughes-Ryan pushed the pendulum too far, from a separation of
powers point of view, into Presidential authority.
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The Federalists, even before the Constitution was adopted, clear-
ly recognized that the conduct of foreign policy is first and fore-
most the responsibility of the Executive.
I believe that there are certain areas that Presidential powers in
foreign policy may be constrained constitutionally. However, the
conduct of secret intelligence operations lies at the center of Execu-
tive authority. By the way, Hughes-Ryan did recognize this by not
giving veto power officially to the committees that would oversee
the covert action.
The Oversight Act of 1980, I would assert recognized the ultimate
discretionary power of the President in covert action. Consequent-
ly, while the two committees, the Senate and the House Intelli-
gence Committees, were to be kept fully and currently informed
about covert actions initiated by the President, this was within a
framework, and the language is important, that had to be consist-
ent with all applicable authorities and duties, including those con-
ferred by the Constitution.
The Oversight Act recognizes separation of power, as described
above, and the fact that in secret operations the President has au-
thority.
So the framers assigned to the President broad, independent con-
stitutional authority to conduct foreign policy. In retrospect, it is
now generally held that in the 1970s, Congress pushed that pendu-
lum too far and Hughes-Ryan was a good example. The Intelligence
Oversight Act of 1980 restored the balance.
Also, if you look back at the end of the 1970s, you see that other
legislation, particularly the charter legislation, was not ratified be-
cause, I would argue, the Congress itself recognized it was going too
far in terms of Executive-Legislative interaction.
Hughes-Ryan and H.R. 1013 do have a lot in common because
both were created during periods of political crisis. Remember, the
atmosphere of the early 1970s and the effect of the Pentagon
Papers, Watergate, Chile, and the revelations about certain domes-
tic intelligence operations by the CIA. It was a charged political sit-
uation.
This was reflected in the way the committees approached the
issue of oversight. The Church mmittee, for instance, and Sena-
tor Church's famous statement about a CIA being a rogue ele-
phant, created the atmosphere in which oversight proceeded. Now,
everyone agreed at that time that we needed a more official over-
sight process. However, that atmosphere negated balanced judg-
ment so by the end of the 1970s in a period of more political calm
Congress reexamined what it did with Hughes-Ryan, and almost
did with the charter. Furthermore, some even asserted that legisla-
tion and Hughes-Ryan contributed to some intelligence failures.
For instance, we know that our human collection in places like
Iran and Nicaragua was very inadequate and subsequently, we
were surprised by the revolutions in those two situations.
We know there were a number of counterintelligence failures,
misestimation of Soviet military power, and the nonexistence of
any effective capability covertly to influence events abroad,
Hughes-Ryan. put the President in the position of only initiating
noncontroversial covert actions, and steering clear of controversial
ones.
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The Intelligence Oversight Act of 1980 recognized that we had to
make some changes, in part, because of the failures that occurred,
but also in recognition of the President's discretionary power to use
covert action. The Oversight Act reflects the balance.
On the one hand it allows for Congress' oversight in almost all
cases, (501A). But 501B says there may be instances when the situa-
tion is very serious, where you need to act with secrecy, and to
compartment the operation. So notification can be withheld. That
is the recognition of the Executive-Legislative balance.
H.R. 1013, like Hughes-Ryan, in my estimation, is taking place in
the heat of political crisis. At issue today is whether the Iran
events necessitate a revamping of the 1980 oversight requirements.
The changes in H.R. 1013, by setting arbitrary time limits, in-
fringe on the President's ability to conduct particularly sensitive
covert actions.
While we can debate whether or not the Iran convert action ac-
tivity meets the stipulation of the 1980 legislation, I don't think we
should throw the baby out with the bath water. There are oper-
ations that are so sensitive and counterterrorism is one, in which
security, secrecy and dispatch are crucial.
We should not lose sight of this in the heat of the current politi-
cal crisis and Executive-Legislative confrontation.
If the President is going to use secret operations without notifica-
tion, and you place a 48-hour reporting requirement on him, you
are narrowing the options to rapid military strike operations. All
other secret activities are eliminated as options. 48 hours is a very
brief period in operational terms.
So if history teaches us anything, I think it is to avoid repeating
mistakes that undermined our capacity to defend ourselves inter-
nationally. Hughes-Ryan had this effect by denying the President
the option to employ covert action as an instrument of foreign
policy.
H.R. 1013 is following the same course. I would ask that you step
back a bit from the current crisis because I fear that if you enact
this now, five years from now, just like five years or so after
Hughes-Ryan, you are going to rethink it and push the pendulum
back.
But what is worrisome is that in that period between the enact-
ment of H.R. 1013 and any changes you might make down the
road, we may suffer international setbacks because the President is
limited in what he can do covertly to 48 hours.
Thank you.
[The statement of Mr. Shultz follows:]
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COVERT ACTION AND CONGRESSIONAL OVERSIGHT
by
Dr. Richard H. Shultz, Jr.
t Testimony prepared for the House Permanent Select Committee On
Intelligence, Subcommittee on Legislation (April B, 1987).
$ Richard H. Shultz, Jr. is an Associate Professor of International
Politics, International Security Studies Program, The Fletcher School
of Law and Diplomacy. He is also at present a fellow of the Hoover
Institution on War, Revolution, and Peace and is preparing a book on
Soviet promotion of insurgent movements in the Third World. He is a
consultant to various U.S. government offices concerned with national
security issues, and is a frequent lecturer to U.S. war colleges and
military academies. His professional interests include U.S. foreign
and national security policy, contemporary military strategy,
intelligence and national security, international and state sponsored
terrorism, unconventional war and power projection in the Third World,
and propaganda and political warfare. His books include Hydra of
Carnage, with-Uri Ra'anan, et-al.; Dezinforoatsia, Active Measures in
Soviet Strategy, with Roy Godson; Special Operations in U.S. Strategy,
with Frank R. Barnett and B. Hugh Tovar; and Lessons From An
Unconventional War, with Richard Hunt.
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Covert action is defined as an attempt to influence politics and
the course of events in other countries without revealing one's
involvement or at least by maintaining plausible deniabilty. Over the
last two decades a spirited debate has taken place within the U.S.
body politic over the place of covert action in the foreign policy
arena. A major issue has been whether and to what degree it is
appropriate for a democracy to undertake secret interference in the
politics'of another country. An important and related question, the
subject of H.R.1013, isf the extent to which the President has
constitutional authority to employ covert action as an instrument of
foreign policy.
In response to the question of whether a democracy should engage
in covert action, four quite different perspectives have emergeds
o Under no circumstances should the United States be involved in
covert action. It violates our democratic values and permits the
President to undertake foreign policy initiatives without first
testing their viability in the marketplace of public discussion.
o Covert action is an instrument of last resort. It should be
utilized after all also fails and the other alternatives are
either to send in the marines or remain passive.
o The United States should only carry out non-controversial
covert actions. In other words, only do covertly that which, if
it becomes public knowledge, will cause very little
embarrassment.
o Covert action is an instrument of foreign policy. All foreign
policy is, in effect, has to address the nexus between foreign
and domestic policy in other countrilss. This can be carried out
both overtly and covertly. Covert action as a tool of foreign
policy can be either a carrot or stick.
The issue is to what degree the President has the Constitutional
authority to exercise this instrument of foreign policy. In my
estimation the proposed amendment to section 501 of the National
Security Act of 1947, as contained in H.R.1013, infringes on Executive
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authority. It goes beyond separation of powers, as understood by the
Framers of the Constitution. Additionally, it appears to be
reminiscent of the way Congressional oversight proceeded during the
mid-1970s. Recall that by the and of the decade Congress itself was
impelled to modify these earlier legislative enactments. The
Intelligence Oversight Act of 1980 is a case in point.
PRESIDENTIAL AUTHORITY AND FOREIGN POLICY
The Framers of the Constitution were cautious both in how they
defined the powers of government and the way they distributed these
powers among the three branches that had been constructed to use them.
They were also of the opinion that certain branches were better
equipped to exercise specific powers than others. Separation of
powers, therefore, was a double-edged sword. It could prevent power
abuse, but also provided for power to be more effectively exercised.
This was apparent in the Framers' deliberations over the role and
powers of the executive branch, particularly in the areas of national
security and foreign policy. Influencing the Framer's judgment was
the ineffectiveness of the Congress in these issues under the Articles
of Confederation. As a deliberative and legislative body, the Framers
viewed Congress as ill-equipped to act with the energy and dispatch
required in international relations. The composition and modus
operandi of the legislative branch made timely action either difficult
or impossible. Consequently, separation of powers resulted in the
Framers designating the executive branch as the more appropriate body
to exercise control over foreign policy.
Nevertheless, the Framers also recognized that while separation
of powers established a division of authority and responsibility, it
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was inevitable that at different times and in different situations the
degree to which the three branches exercised authority and checked one
another would vary. The changing role of the President and Congress
in the arena of intelligence presents a good example.
From 1947 to the and of the 1960s, Congress did not actively
pursue its formal oversight authority. There was a consensus both
over the parameters of American foreign policy and recognition that
its conduct was the responsibility of the executive. Intelligence was
viewed as an instrument of foreign policy and Congress was reticent to
impinge upon the constitutional authority of the President. Only a
few members of each house of Congress informally took part in the
oversight of intelligence, and by choice their involvement was held to
a minimum.
The events of the 1970s reversed Congressional reticence and the
mechanism of oversight, which always existed, came to be vigorously
exercised. Clearly, the pendulum began to swing away from
Presidential dominance. Underlying this was the shattering of the
post-World War II consensus over the course of U.S. foreign policy.
Congressional restraint turned into activism, and this was no where
more evident than in the field of intelligence oversight.
By the second half of the decade, many argued that Congress had
pushed the pendulum too far, particularly with respect to t:,e
President's ability to employ covert action as an instrumeent of
foreign policy. This argument centered arottad the Hughes-Ryan
Amendment to the 1974 Foreign Assistan.;e Act, which called for
explicit Congressional oversight of the President's use of covert
action. Hughes-Ryin required that the President notify the
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appropriate Congressional committees prior to or immediately upon
initiation of a covert action. Under the prescription of the
amendment a total of eight committees had to be informed of each
planned covert operation.
Hughes-Ryan did not give Congress veto authority over the
President's use of covert action. However, the fact that the members
of eight committees were in the know made it very difficult to
guarantee that covert programs would remain secret. The amendment
gave any member of the eight committees a de facto veto over any
proposed covert action he or she might find objectionable. The result
was that Presidents would be willing to undertake only
noncontroversial covert actions, which, if they became public
knowledge, would cause little political discord.
Did Hughes-Ryan push the pendulum too far in terms of separation
of powers and Presidential authority? Article II, section 1 of the
Constitution places executive power in the President. This is the
source of the President's wide and inherent discretion to act for the
United States in foreign and national security affairs. Of course,
this is subject to those limits the Constitution delegates to the
Congress. Nevertheless, even before the Constitution was ratified, it
was asserted in The Federalist that the President's executive power
would include the conduct of foreign policy. Historical practice and
legal precedents have confirmed this authority in formulating and
implementing foreign policy.
While in certain areas the President's power in foreign policy
may be constrained constitutionally, the conduct of secret
intelligence operations lies at the center of executive authority.
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This does not mean that Congress is excluded, as the oversight process
has demonstrated. In fact, the wording of the Hughes-Ryan amendment
itself recognized this fact. It did not give Congress formal veto
power over a covert action authorized by the President, although the
way the amendment was constructed an unauthorized and de facto veto
power ensued. The 1980 amendment to the National Security Act of 1947
not only sought to correct this situation, but recognized the ultimate
discretionary power of the President in covert action. Consequently,
while the Senate Select Committee on Intelligence (SSCI) and House
Permanent Select Committee on Intelligence (HPSCI) were to be kept
fully and currently informed about covert actions initialed by the
President, this was within the framework of what was "consistent with
all applicable authorities and duties, including those conferred by
the Constitution upon the executive and legislative branches." The
language in quotations is precisely that which H.R.1013 seeks to
excise from the National Security Act of 1947.
In sum, the Framers assigned to the President a broad and
independent Constitutional authority to conduct foreign policy. In
retrospect, it is now generally held that in the 1970s Congress pushed
the pendulum to the point where the Framers' concept of separation of
powers was circumvented. This was quite apparent in the direct and
indirect impact of the Hughes-Ryan amendment. The Intelligence
Oversight Act of 1980 restored the balance. The Hughes-Ryan
amendment, along with other legislative efforts (including the Foreign
Intelligence Surveillance Act of 1978 and the proposed but never
enacted charter legislation drafted by the SSCI (S.2525)), dominated
the Congressional oversight process of the 1970s. These measures were
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enacted during a period highly charged with political crisis and
executive-legislative confrontation. Beginning in 1979-1950, in a
period of greater political tranquility, certain of these legislative
actions were either revised or as in the case of the proposed charter
never enacted. H.R.1013 would result in a repetition of the oversight
pattern of the early mid-1970%.
POLITICAL CRISIS AND CONGRESSIONAL OVERSIGHT THE HUSHES-RYAN AMENDMENT AND H.R.1013
In many respects, the Hughes-Ryan Amendment and H.R.1013 have a
great deal in common. To begin with, both grew out of a highly
charged political crisis. Recall the climate surrounding the
enactment of Hughes-Ryan. In 1971, the Pentagon Papers were published
in the midst of the domestic turmoil over the Vietnam War. The next
year was marked by the beginning of the Watergate scandal which
resulted in the resignation of President Nixon in 1974. At that time,
the controversial covert program in Chile was exposed, as were certain
domestic intelligence operations run by the CIA. This led to the
creation of House and Senate special committees to investigate past
and present activities of the intelligence community. In many ways,
the Chairman of the Senate special committee, the late Senator Frank
Church, summed up the political tenor of this oversight period in his
charge that the CIA was a "rogue elephant" out of control. Neither
his committee nor the sister committee in the House found evidence to
support this claim. The broad charge of massive and systematic abuses
and illegal activities by the intelligence community was never
documented.
Nearly everyone looking at the oversight process at that time
recommended some kind of permanent committee system for intelligence.
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But it had become clear by the and of the seventies that speculation,
like that of Senator Church, was unfounded and, further, that it
created an atmosphere in which balanced judgment suffered. By the and
of the decade, the SSCI and HPSCI more prudently concentrated an
correcting the real errors and structural deficiencies of the
intelligence community. In effect, oversight began to shift away from
an exclusive concern with rules and
restraints on the intelligence community and the President's ability
to work with it. This was reflected, in the first place, in the
Senate's rejection of the charter legislation, which contained a set
of complex regulations and prohibitions to rule and restrain every
activity of U.S. intelligence.
In the 1980., as the pendulum began to swing back the agenda
broadened to include strengthening the performance of U.S.
intelligence. A series of intelligence failures revealed the price of
ignoring the requirements necessary to meet hostile intelligence
services and to stand up to national security challenges facing the
United States. These included the inability to collect sufficient
information about the Iranian and Nicaraguan revolutions in order to
provide early warning, various counterintelligence failures, mis-
estimations of Soviet military power, and the non-existence of any
effective capability covertly to influence events abroad.
The Intelligence Oversight Act of 1980 demonstrated both
Congressional concern over these intelligence failures and
deficiencies, as well as recognition of the fact that in certain
situations the President requires discretionary power to employ covert
action as an instrument of foreign policy. Consequently, the National
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Security Act of 1947 was amended to provide both Congressional
oversight and Presidential flexibility in special situations. Section
501(a) provided the followings
o The SSCI and HPSCI would be kept fully and currently informed
of anticipated covert actions. This did not require their
approval in order to initiate the operation.
o The President could limit prior notice to the ranking members
of SSCI and HPSCI, the speaker and minority leader of the House
and majority and minority leaders in the Senate if extraordinary
circumstances existed.
For those situations in which the President determined that to comply
with section 501(a) would endanger lives and/or operational security,
section 501(b) required the President to inform-the SSCI and HPSCI in
a "timely fashion." This was to include a statement of the reasons
for not giving prior notice. Finally, the 1980 legislation also
required reporting of all intelligence failures.
In my estimation, the Intelligence Oversight Act recognized the
inherent authority of the President to withhold notification. It was
considered within his constitutional authority. It did not view with-
holding notification as the rule, but more of an exception.
Consequently, the act sought to strike a balance. It also implied
that the Congress understood the need for Presidential flexibility to
act with dispatch and secrecy if the situation so warranted.
Although it would be unfair to compare the Iran crisis with the
situation in the early/mid 1970ss H.R.1013 is, in a fashion similar to
Hughes-Ryan. It is undertaking legislative restrictions in the heat
of political crisis. At issue today is whether the Iran events
necessitate a revamping of the 1980 oversight requirements. In my
estimation these changes recognized that to set arbitrary time limits
infringe on the President's ability to conduct particularly sensitive
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covert operations. While we can debate over whether or not the Iran
activities met the stipulations laid down in section 501(b), we should
not change the existing procedures. There clearly are operations that
are so sensitive, for instance in the counterterrorism arena, that
security, secrecy, and dispatch are crucial. We should not lose sight
of this in the current political crisis and executive-legislative
confrontation. Certainly the forty-eight hour requirement contained
in H.R.1013 is a such too tight restriction and denies operational
flexibility necessary for dealing with situations which involve grave
danger to personal safety or which require speed and stealth. It
restricts the range of secret options available to the President to
rapid military strike operations. The emphasis thus far on short term
and time sensitive actions does not imply that all covert operations
of a longer duration require prior notification. While this may
generally be the case, one can imagine circumstances where this would
not be true.
In sum, if history is to teach us anything, it is to avoid
repeating those mistakes that undermined the nation's capacity to
defend itself against adversaries in the past. The Hughes-Ryan
amendment had this affect by denying the President the option to
employ covert action as an instrument of policy in controversial
situations. H.R.1013 is bound follow the same course. Congress
should recognize that there are instances in which executive
notification requires delay. In the midst of the political crisis
surrounding the Iran events, it is not prudent to create legislative
restrictions and rigidity that the nation may greatly regret later and
which Congress may find it necessary either to revise or completely
reverse. What is worrysome are the foreign policy failures that might
occur in the period between the enactment of new restrictions
contained in H.R.1013 and some future Congressional revision of these
regulations.
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Chairman McHUGH. Thank you very much, Dr. Shultz. Dr. Hal-
perin.
STATEMENT OF MORTON HALPERIN, DIRECTOR, WASHINGTON
OFFICE OF THE AMERICAN CIVIL LIBERTIES UNION; FORMER
SENIOR STAFF MEMBER, NATIONAL SECURITY COUNCIL; AND
FORMER DEPUTY ASSISTANT SECRETARY OF DEFENSE, INTER-
NATIONAL SECURITY AFFAIRS
Mr. HALPERIN. Thank you, Mr. Chairman. I appreciate the oppor-
tunity to be here and testify on behalf of the American Civil Liber-
ties Union. I want to say first that the ACLU believes, and I be-
lieve that the United States should not conduct covert operations. I
believe Mr. Hyde knows, and we have discussed it in the past, that
this is our view. I would hope that at an appropriate time the Com-
mittee would hold hearings on that more fundamental question,
and we would welcome an opportunity to discuss that.
But as I have done on a number of occasions when I have ap-
peared before this committee, I want to accept the terms in which
the committee is conducting this discussion, and try to be helpful
to the committee in discussing how to improve the oversight proc-
ess and covert operations on the assumption that the question of
whether they should be conducted is not now on the table.
So I have attached to my statement a more detailed analysis of
that question. I would like to ask permission to have my written
statement and three attachments to it be made part of the record,
and to have permission to revise those attachments when we
submit the corrected version of my statement.
Chairman McHUGH. Without objection.
Mr. HALPERIN. In my view this bill simply makes clearer the
meaning of the Intelligence Oversight Act of 1980. I do not think it
adds in any significant way to the obligations of the Executive
Branch to report on covert operations to the Congress.
If you look, as we have and spelled out in one of the attachments
to my statement, at the legislative history, I think it is absolutely
clear, and Mr. Stokes' quotes from the history makes clear, that
this bill simply does what Congress intended. The intention was
that prior notice be given in all but the most extraordinary situa-
tions, and that in those situations, there be what was called
"timely notice" which is of course the language from the Hughes-
Ryan amendments.
There was a good deal of discussion of when those circumstances
would arise. They clearly were not cases where secrecy was impor-
tant, because the Congress provided an alternative to deal with the
question of secrecy, it named the so-called Gang of Eight.
What it said to the President was if you think the operation is so
secret that you don't want to tell the members of the two commit-
tees, then just tell the eight leaders the Congress has designated to
get this information. I find it insulting to suggest that those eight
leaders of the Congress cannot be trusted even with the most sensi-
tive information that the government has.
The notion that one of those eight people would leak information
about an American going into Teheran to help the hostages out I
find to be an extraordinary charge, one for which there is no basis
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in the record of the congressional leadership, or even in the intelli-
gence committees, in keeping information of that kind secret.
But the bill clearly intended that as the route for an especially
secret instance.
It dealt with the alternative to prior notice in the other circum-
stances only for areas of great speed where there was an exigency,
where there was not time to consult, and then it said if you had
not consulted in advance you must consult in a timely manner.
There was also a great deal of discussion about what timely meant.
As we suggest, whatever it meant it did not mean "never." I think
it is clear that the Administration never intended to report on that
operation, certainly not until long after it was over.
I think it needs to be remembered, that the purpose of informing
Congress is not the usual sense of conducting oversight after an op-
eration is over to see whether it was conducted properly. The pur-
pose of the advance notice or the timely notice was to permit con-
sultation with the congressional committees as a substitute for
public debate.
We are talking here about authorizing the President to engage in
operations which could lead the United States to war, which in-
volve provision of military equipment to other countries, which in-
volve hiring people to engage in military acts such as mining har-
bors and blowing up power plants. What the Congress said in the
Oversight Act, I think correctly, is that if we are going to permit
the President to do this without the normal public debate and con-
gressional action which would normally be required for such acts,
we are going to insist that we have a surrogate. The surrogate is
that the President and the Executive Branch be required to consult
with two congressional committees so that those committees not
have the power of veto, but have the power of discussion with the
Executive Branch, if necessary communication with the President,
if necessary a meeting with the President. The purpose was that
they can be a substitute for and a surrogate for the public debate
that otherwise ought to occur, and can have a chance to talk the
President out of it, to tell him he is wrong in thinking that when
this hits the front pages of the newspapers everyone will approve
it.
So that not only is there not any question of whether it is consti-
tutional, I think there is a real question of whether covert oper-
ations are constitutional without it, without something which man-
dates that Congress have a chance, an opportunity, to comment
before the covert operation goes forward.
Now, it has been suggested this morning and in your last hearing
that Congress is rushing to act in the face of a crisis. I would say
the Congress has been very slow to act, because the crisis has been
clear since 1981. The statements that Mr. Casey made in public,
the way in which he dealt with both this committee and the Senate
committee, has led I think to the conclusion of everyone involved
in the process that he simply did not accept the understandings
embodied in the 1980 Act.
You remember that after the Vice Chairman of the Senate Com-
mittee resigned at one point, there was a detailed agreement nego-
tiated between Mr. Goldwater and Mr. Casey about these issues, I
think there is no question that there is now a fundamental dis-
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agreement between the Executive Branch and the Congress as to
the meaning of the 1980. Act.
I think such a disagreement is enormously dangerous when we
are dealing with issues of this kind. Therefore it is necessary for
the Congress to revise the Act simply to make it clearer what it is
that is intended so that there cannot be any disagreement about it.
This is not in my view simply a reaction to the Iran affair which
demonstrates, I think, the total disagreement about what. the stat-
ute means, but it is an overdue reaction to the evidence beginning
in 1981 that there was simply a disagreement about what the stat-
ute meant.
It was suggested this morning that the 1980 Act cut back on Con-
gress' authority to get information about covert operations and
about intelligence activities, and that the 1980 Act was a deliberate
action as compared to the Hughes-Ryan amendment which was
done in haste and on the back of an envelope, as indeed it was.
But I would argue just the reverse, that the 1980 Act added to
the President's obligations to report and did not subtract except in
one way, it says that the President only had to report to the two
intelligence committees rather than all appropriate committees, al-
though it went on to say that those committees had the authority
and obligation to call the information to the attention of other
committees.
But apart from that, it did not subtract at all from Hughes-Ryan.
Indeed it enacted the Hughes-Ryan amendment. When we are told
that section B somehow in contrast to Hughes-Ryan, is an acknowl-
edgment of Presidential authority, that makes no sense because
section B is the Hughes-Ryan language. It says that the Congress
must be informed in a timely fashion of all covert operations. That
is what Hughes-Ryan said, and that is what section B says.
It is section A which talks for the first time in legislation about
prior notice. That is the new language. It was in 1980 that Con-
gress added in my view two enormously important and correct re-
quirements; one, prior notice which did not appear in Hughes-
Ryan; and second, of keeping the committees fully and currently
informed of all intelligence activities and of reporting in advance,
not only of covert operations but of all of what the bill called "sig-
nificant anticipated intelligence activities" which clearly includes
more than covert operations.
So I think that Congress made its deliberate judgment in 1980,
and not in the Hughes-Ryan, and in what it decided in 1980 was
that Hughes-Ryan was not enough and not that it was too much, I
think that was in fact the correct judgment. We are told there are
constitutional questions about Hughes-Ryan. I reread my constitu-
tion last night. I am tempted to ask that it be made part of the
record, but I will resist that. I find nothing in the Constitution that
would prohibit the Congress from saying no funds may be appropri-
ated for the conduct of covert operations. I know no serious consti-
tutional scholar, indeed I think no constitutional scholar who be-
lieves Congress could not prohibit the expenditure of funds in its
appropriations bills for covert operations.
I think if one includes in covert operations the sending of secret
agents abroad to negotiate and things of that kind, that you run
into constitutional questions. But if you are talking about whether
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the President of the United States can be stopped by the Congress
from hiring people to blow up powerplants or to mine harbors or to
arm men to go into combat against a country with which we have
diplomatic relations, if you are talking about those kinds of covert
operations, I know of no scholar who thinks that Congress could
not simply prohibit it by saying funds cannot be used for those pur-
poses. Nor do I think there is any serious question that Congress
can say you can do this but you have to tell us about it in advance,
and if there is not time to tell us about it in advance, you have got
to tell us about it within 48 hours.
That has no effect on the President's ability to operate with se-
crecy, vigor and dispatch, which I agree the Constitution intended
him to do. He can move forward in a minute and then get the
notice to the Congress within 48 hours. This is not a magic process.
The President must approve a covert operation. Sometimes appar-
ently the Executive thinks he can do it orally but as far as we
know, except for the one time that nobody can remember, all the
Findings have been in writing.
What we are talking about is giving the President 48 hours to
get a piece of paper from the White House down to the Capitol.
Now they have stopped reconstructing Pennsylvania Avenue and it
no longer takes 48 hours to get a piece of paper from the White
House to the Congress.
The notion that the President's ability to act quickly is con-
strained because within 48 hours of him signing a piece of paper it
has to be delivered to the Congress is in my view absurd, and not a
serious constitutional argument. Nor do I think it is a serious con-
stitutional argument to say that because one of the eight leaders of
Congress may leak something, that it violates the Constitution to
require that information to be given to the Congress.
The Constitution assumes equal obligations and responsibilities
of the two branches, and there is nothing in the record and nothing
in the Constitution I think to justify the assertion that it violates
the Constitution for the Congress to be informed.
I would like to turn finally to the concerns raised by Admiral
Turner at the last hearing about whether the President should be
required or the Director of Central Intelligence be required to give
the committees information like the date and the time and the.
manner in which a CIA agent will be infiltrated into a country to
help get Americans out.
I think that is a real concern. I share Admiral Turner's view
that there ought to be situations in which that kind of specific
operational detail should not be given to anybody except those
people who absolutely need to have that information. But I see
nothing in this legislation in its unamended form or its amended
form that requires the provision of such information.
Let me take a minute to look at his example.
The President presumably could have, and I assume did-Presi-
dent Carter-sign a presidential Finding authorizing the CIA to
undertake operations to rescue the Americans held in Teran.
That kind of finding should certainly be reported to the two in-
telligence committees. But at that point it seems to me wholly ap-
propriate, and not at all inconsistent with the language of the stat-
ute, to say to the committees we are going to be doing a variety of .
76-1950-87-41
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different things to get the Americans out. If we are doing some-
thing of political consequence, like selling arms to a third country
that we have an arms embargo with, we will tell you about it, but
if what we are doing is infiltrating agents into that country for the
purpose of gathering information for the conduct of operations, we
don't intend to tell you about those specific details.
I can not imagine the committee saying, no, we want to know the
name of the person, how he is getting in, what his disguise is, what
passport he has and how he will get out.
Those kinds of details you may want to know afterwards for
oversight and analysis, but nobody would want to know in advance,
and I don't think the committees would ask for it and I don't think
this legislation requires it.
I think Admiral Turner is confusing the requirements for in-
forming about a covert operation with the requirement to keep the
committees fully and currently informed about intelligence oper-
ations and reporting on significant anticipated activities. I think
those requirements are properly in the law, but I think they do not
require and should not require the provision of that kind of very
specific operational detail that places lives in jeopardy.
If there is any doubt about what the legislation does, I would
urge the committee to rewrite those provisions to make clear the
distinction between the necessity of reporting that a covert oper-
ation is going forward, and the necessity of reporting the details
that have political consequences, but not the kind of operational
details that involve placing lives in jeopardy.
I appreciate the opportunity to testify and I of course would be
delighted to respond to your questions.
[The statement of Mr. Halperin follows:]
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PREPARED TESTIMONY
AND
STATEMENT FOR THE RECORD
OF
MORTON H. HALPERIN
DIRECTOR
AMERICAN CIVIL LIBERTIES UNION WASHINGTON OFFICE
BEFORE THE
LEGISLATION SUBCOMMITTEE
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Mr. Chairman,
I very much appreciate the opportunity to testify on behalf
of the American Civil Liberties Union on H.R. 1013. The ACLU is
a non-partisan organization of over 250,000 members dedicated to
the defense and enhancement of civil liberties guaranteed by the
Bill of Rights.
There is no doubt, in my view, that Congress ought to go at
least as far as this legislation does. Indeed, I believe that
this legislation simply makes explicit what Congress clearly
intended in 1980.
The record now before this committee and the nation
demonstrate that covert operations are fundamentally
incompatible with _a democratic society. The ACLU has held that
position for a number of years, and I have had the privilege of
presenting it to this committee on more than one occasion. The,
basic argument is that covert operations are used by our
Presidents to avoid the public and congressional debate mandated
by the Constitution, a debate which is particularly crucial when
questions of war and peace are at stake. Granting officials the
authority to conduct covert operations inevitably leads to abuses
of power, as it did in the Iran-contra affair. Officials begin
to believe that they can and must lie to the American people and
their colleagues, and that they have a license to break the law.
These are the inevitable results of permitting such activities;
they cannot be cured by more perfect legislation. (These
arguments are spelled out in -more detail in the first attachment
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97
to this statement and I will not belabor them here.)
Taking as given that the committee at this stage is simply
interested in clearing up the question of prior notice with regard
to covert operations, let me offer the following observations.
First and most important, I would urge you to keep in mind
what the 1980 Intelligence Oversight Act sought to accomplish.
Its goal was to create a surrogate for public and full
congressional debate. If this is done, it is essential to have
the most complete possible substitute. Congress is thus
entitled, in permitting such operations to go forward, to insist
on procedures which in another context might constitute an
unwarranted and even perhaps unconstitutional intrusion into the
prerogatives of the president.
he the letters received by this committee from
constitutional scholars make clear, there is no serious doubt as
to the constitutionality of the provisions in the bill. I would
go further and argue that they are necessary if the Congress is
to perform its constitutional obligations to conduct effective
oversight of activities which could lead to war.
During the first day of hearings on H.R. 1013, there were
suggeitions.both from witnesses and members of the committee
counseling against wen this modest legislation. Two kinds of
arguments were heard. The first suggested that since the key to
effective oversight is cooperation between the executive and
legislative branches, legislation would do no good and might even
be counter-productive. The second suggested that the legislation
would compel the intelligence agencies to disclose information
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which might place the lives of agents in jeopardy. Let me
express my views on both of these concerns.
Even a cursory review of the events of the past six years
should leave no doubt that new legislation is necessary. The 1980
Intelligence Oversight Act was a carefully crafted compromise
between the intelligence agencies and Congress. Its meaning was,
I believe, well understood by all of those who participated in
its drafting and approval. The difficulty, of course, arose
because those in the executive branch who became responsible for
its implementation after 1981 were not participants in the
process. The new administration consistently chose on a range of
issues, not ^iaply the arms transfer to Iran, to ignore the
letter as well as the spirit of the legislation. The statements
of administration officials, and the legal analysis offered by
the apartment of Justice, leave no doubt that the administration
never accepted the 1980 compromise. Oversight cannot work if
there is fundamental disagreement about the President's
obligations.
The record also ask" it clear that legislative history,
Presidential directives, and agreements between the intelligence
committees and the Congress are no substitute for clear
legislative language.
One does not have to read the legislative history of the
1980 Intelligence Oversight AA--to, understand that "timely" does
not mean "never." The legislative history in fact leaves no
doubt that the authority of the President to avoid prior notice
could be exercised only in the most extraordinary circumstances,
when the survival of the nation could be said to be at stake.
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Moreover, it makes clear that "timely" notice could not be
delayed indefinitely. Yet the administration on a number of
occasions simply ignored, and perhaps was not even aware of, the
legislative history of these phrases. Attachment two to this
statement is a detailed analysis of the legislative history which
leaves no doubt that the Act was repeatedly violated. Yet since
this is not an area in which litigation is possible, there is no
way to secure a judicial interpretation of the legislative
history, or to enforce it.
Obviously, executive branch officials may simply choose to
disobey the law. However, they are such more likely to do so
when the words of the law are not absolutely clear, or when they
seem to permit exceptions. Congress has an obligation not to
offer such temptations to those who exercise power.
If careful legislative history is no substitute for
statutory language, neither is a presidential directive. Here
the report of the Tower Commission is instructive, even if its
recommendations are not. The Commission notes that many of the
procedural requirements that it recommends, and that would be
mandated by the legislation you are considering, were included in
an Executive order in effect when this administration took
office. That Order was replaced by a new one which did not
include such procedures as requiring written findings, or
consulting with members of the National Security Commission. The
Tower Commission report states that the President later issued a
secret directive, NSDD 159, which reinstated these procedures.
But the report found that this directive was "promptly ignored"
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in the Iranian arms sales.
- From this history, the Commission reached the conclusion that
the President should issue a directive and that it should be
followed. From this history, this committee must conclude that
any order that the President issues can be rescinded in public or
in secret, or simply ignored.
Finally, explicit agreements between the intelligence
committees and the Director of Central Intelligence cannot be
counted on. Senator Moynihan has presented this committee with a
copy of the agreements negotiated and signed by William Casey and
the leadership of the Senate committee. They are staggering in
what they reveal about the administration's willingness to abide
by its agreements. Mr. Casey promised to inform the committee of
any new Presidential findings in advance of implementation; he
did not do so. Bepromised to let the committee know if any
existing Presidential orders were ignored he did not do so.
Finally, he promised to notify the committee of any weapons
transfers; he did not do so. The agreement was consistently
disregarded by the administration. No committee serious about
oversight would rely in the future on such agreements.
This brizigs as to the question of the committee's role in
the oversight process. There is no doubt that the executive
branch disobeyed the letter as well as the spirit of the law,
both the Intelligence Oversight Act and the Boland Amendment
There is also little question in my view that this committee, and
its counterpart in the Senate, failed to live up to its
obligations. When Congress asks the public to accept secret
operations and when it assigns committees to monitor them on
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behalf of each house, those committees have a special obligation.
Members of the committee and its staff must probe and question
and take seriously charges of wrongdoing. With regard to the
violation of the Boland Amendment, this committee did not, in my
view, most its responsibilities. One trusts that the lesson has
been learned.
Let me turn briefly next to the issue raised by Admiral
Turner and others about the risk of providing details about
specific operations to any members of the Congress. I sympathize
with the desire to keep such details secret, but I do not
understand H.R. 1013 to require their disclosure. This concern
confuses the requirement to notify the committees in advance
about a covert operation with the requirement to keep the
committees fully and currently informed and to inform them in
advance of any significant anticipated intelligence activity.
The legislation would require advance notice of any
Presidential finding authorizing a covert operation, but not
necessarily of all specific details of the operation. Thus, to
use Admiral Turner's example, if President Carter had issued a
finding authorizing an operation to rescue the hostages in Iran,
and had properly informed the two committees, neither the law as
it now stands, nor as it would be amended, would require that the
committee be noticed of each sub-operation. That is not to may
that some activities within a covert operation should not be
reported to the committees in advance, clearly they should. It
is only to say that the law contemplated by the bill would not
specify that they should.
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If there is any ambiguity on this score, the legislation
could, and probably should, be rewritten to separate the
requirement with regard to a Presidential finding, which should
be absolute, from the requirements to answer questions and to
report in advance on other significant anticipated activities.
With regard to the latter, some leeway and give and take between
the committees and the executive branch may be in order. Once
the committees know that an operation is underway, they have an
obligation to press and probe and to make clear what information
they want. I believe that the statute should require that the
requested information be provided unless its compromise would
directly and immediately place the lives of agents in danger
during a finite period, and the proposed action did not raise
questions of policy, propriety, or legality.
'finally, Mr.'Chairman, I want to say a brief word about the
proposal to create a joint intelligence committee. The Tower
Commission, having detailed a willful refusal of the executive
branch to obey the law, suggests that the solution is to create a
single committee in the hope that executive branch officials
would feel compelled to inform as required by the law. There are
two fatal flaws in this argument. First, the Congress reduced
the number of committees that had to be informed from eight to
two based on exactly the same argument. Second, current law
permits the President to notify only eight leaders of the
Congress. Since he did not avail himself of this option in the
case of the Iran operation, it is impossible to believe that he
would have informed a joint committee. (Also attached is a more
extensive analysis of the joint committee proposal.)
Kr. Chairman, let no once again command you for holding
these hearings and thank you for providing an opportunity to the
ACLU to testify. I stand ready to answer your questions and to
assist the committee in any way that we can.
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Chairman McHUGH. Thank you very much for that testimony,
and we have some contrasting views which will make it interesting
for us to pursue.
Dr. Shultz, I guess I would like to first fully understand your ob-
jection to this bill, the nature of your objection.
As we all know, what Mr. Stokes' bill would do is require prior
notice in virtually all cases except where the President determines
that time is of the essence, and extraordinary circumstances affect-
ing the vital interests of our country require withholding of prior
notice, in which case there has to be notice within 48 hours after
the fact.
Is your objection to that provision grounded in the Constitution,
or is it simply, from your perspective, unwise policy?
Mr. SHULTZ. What I tried to suggest is both. I believe that consti-
tutionally the President, as the principal officer responsible for for-
eign policy, has more latitude to act than you are giving him here.
Additionally, from the point of view of operations I would disagree
with Mr. Halperin. I believe that there are instances in which you
need tight operational security and I am not convinced that in
those instances, it is proper to put lives at risk in order to notify
the Congress.
The President has to live with his policy and afterwards, it may
well prove to be bad policy. Nevertheless, making foreign policy is
the primary responsibility of the President.
Chairman McHUGH. There has been real disagreement over the
wisdom of requiring notice within 48 hours even in exceptional
cases. But there has been very little objection so far to the constitu-
tionality of the proposal. I have difficulty understanding why there
would be any question about its constitutionality.
Dr. Halperin has said Congress has the right to absolutely pro-
hibit a particular policy, covert or overt. We passed a bill as you
know and it was law for about two years, prohibiting the Adminis-
tration from providing directly or indirectly military assistance to
the contra revolutionary forces in Nicaragua.
We passed laws prohibiting assistance to the government of
South Africa. Now if Congress has the authority constitutionally to
prohibit a covert operation, presumably because Congress has a
constitutional right to join with the President in determining
policy of the United States, why doesn't Congress have the right to
set certain conditions under which covert operations can be con-
ducted?
Mr. SHULTZ. You are arguing that because you have budget au-
thority, you can limit all Presidential covert actions. But can the
President in his foreign policy of supporting the contras through
covert negotiations with other friendly nations convince them to fi-
nancially support the contras? Is that a violation of the ban that
you have placed on direct support by the United States?
Chairman McHUGH. No, but the President can conduct a covert
operation--
Mr. SHULTZ. And that would be conducted covertly.
Chairman McHUGH [continuing]. Because Congress provides au-
thority to spend money on covert operations. Either by line iteming
the covert operation or by providing contingency funds under
which the President can proceed with covert operations.
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Mr. SHULTZ. Right.
Chairman MCHUGH. But in doing so Congress says if you decide
to proceed with this covert operation or any covert operation, you
have to tell us about it.
Mr. SHULTZ. I don't have any problem but covert action can be
secret negotiations without spending money.
Chairman McHUGH. What is constitutionally wrong with that.
Mr. SHULTZ. I don't have any problem with your position.
Chairman McHUGH. That is all we are talking about.
Mr. SHULTZ. No, I think the 48 hours limits the President's abili-
ty which evolves out of the Constitution to act with dispatch in se-
rious situations.
Chairman McHUGH. I won't beat a dead horse, but I have diffi-
culty with that. If Congress has the authority to totally prohibit a
covert operation such as the selling of arms to Iran or providing
military assistance to the contras, it seems to me that requiring
notice is somewhat less intrusive constitutionally and practically
and therefore--
Mr. SHULTZ. I am not defending Iran, okay?
Chairman McHUGH. I understand.
Mr. SHULTZ. I say that in the testimony. I don't think that what
the President did in the case of Iran fits within the language as it
currently exists. So I don't want to defend that.
What I want to say is that constitutionally the President has for-
eign policy power and there are situations in which he will have to
act with dispatch and with secrecy, and that the 48 hours infringes
upon his flexibility. By the same token--
Chairman MCHUGH. Why? Can you explain to me why that is
true? You indicated in your testimony that somehow by requiring
the President to notify Congress within 48 hours after he has
begun a covert operation we preclude the President in certain cases
from acting. I don't understand that. Why do we preclude him from
acting?
All we are asking him to do is tell the intelligence committees or
in certain limited cases the Gang of Eight. Why do we preclude
him from acting?
Mr. SHULTZ. I think in most instances, probably clearly the ma-
jority, Congress should be notified. However, I want to allow a
degree of flexibility for the President if there are situations where
he and his counsel are convinced that they have to compartment
an operation. In other words, I am saying that in almost all in-
stances they should come and notify you and even in extraordinary
instances, they should notify what you refer to as the Gang of
Eight.
Chairman McHUGH. Okay. I can appreciate that.
Mr. SHULTZ. Then I want to allow a bit of flexibility so that if
there are situations that require tight operational security, that
the President can act.
Now, I don't disagree completely with what Mr. Halperin says
because I do believe you have an oversight authority. Still, I want
to leave the President more flexibility. I think 48 hours does not.
Chairman McHUGH. Here is our problem, and I think perhaps
we are narrowing our differences. I think the intent of the bill, and
Mr. Stokes can speak to this more directly than I, is to give the
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President that bit of flexibility and what you are suggesting is
maybe 48 hours is too rigid.
Mr. SHULTZ. I am saying--
Chairman McHUGH. But our problem, Dr. Shultz, is that under
existing law the only requirement is that the President give notice
in a timely fashion in these limited cases, and here we have an Ad-
ministration that interprets timely notice as no notice.
Mr. SHULTZ. Well--
Chairman McHUGH. Or at least from the signing of the authori-
zation in January of 1986 until we learned of it from a Middle
Eastern magazine in November, we received no notice. In a situa-
tion like that the system is not operating because, as Dr. Halperin
says, there is a fundamental disagreement about what timely
notice means. What are we to do? Are we to leave the law as it is,
which I think is your suggestion?
In that event we are subject to the same type of "liberal inter-
pretation".
Mr. SHULTZ. You have to rethink what constitutes a "timely
fashion." Should the President have notified Congress when he
began secret negotiations or is that within his authority to do so
without notification? I think it is. When he decided to sell arms to
Iran I probably would have notified the gang of eight, but there
was a time gap of more than 48 hours between when the Adminis-
tration decided to explore an opening to Iran and when it was real-
ized that in order to do business with Iran, the currency to carry
this forward was going to be the sale of arms.
So that is where I want to allow for some Presidential flexibility,
and by the same token the case of Nicaragua, which Mr. Halperin
referred to, likewise quite complicated. On the one hand, Congress
clearly said in legislation that the President could not provide
funds to the contras. But the President can still have a foreign
policy. that supports the contras. He can carry that out short of
providing funds or arms. The Congressional restriction did not
mean that a friendly nation with the U.S. might not undertake
that kind of activity with our encouragement.
So you see, it gets a bit slippery there. You are right, you have a
hammer lock on the President in terms of funds, but does he have
foreign policy flexibility to still support the contras? I think so. So
that is where it gets tricky in my estimation.
Chairman McHUGH. Thank you very much.
Mr. Livingston.
Mr. LtvINGSTON. Thank you, Mr. Chairman.
Dr. Halperin, I want to thank you for your presentation, a very
thoughtful and well presented one. I just happen to disagree with
you. Let me give you some thoughts in response.
I don't think I have heard any constitutional arguments against
your position. I think that in essence if you are talking about
covert action and I know your position is as you well stated it
there, you stated in the past you are against covert action. I ques-
tion the wisdom of that position from the point of view of a democ-
racy in a hostile world.
I would like to think that if we unilaterally restrained ourselves
from covert actions that the rest of the world would as well, but
that doesn't seem to prove true.
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I know we just simply disagree there. There is no need to com-
ment on that.
You said that it is an extraordinary charge against the Congress
to say that the Congress cannot keep a secret. Perhaps you were
personalizing that to the eight individuals, the Big Eight. But in
fact, last week Mr. Hyde elaborated at length on how the Congress
has in many, many instances failed to keep a secret, and one cir-
cumstance that comes to my mind was in fact the, just before an
advance of the Libyan raid when the President did consult with
just a very few Members of Congress, Sam Donaldson got on the
air about a half hour before the raid and announced that there was
about to be a great big action against Libya.
Very shortly that edge.
That happens. It is unfortunate. But I think that we have to rec-
ognize that Congress often becomes a sieve and is incapable of
keeping state secrets, so when you engage in these types of activi-
ties, it is indeed important to keep them as tightly knit as possible.
But really, I want to reserve that and just go on to the final ar-
gument. The Chairman has said what are we to do when in the Ira-
nian situation, for example, the Administration failed to adhere to
current law. Well, my feeling is as I indicated in my previous re-
marks, that currently is sufficient, that the Administration was in
error, Professor Shultz has taken that position, all the witnesses
last week took that position, that the Administration perhaps did
not comply to the full extent of existing law.
So what are we to do? Are we to all of a sudden react to that
malfeasance to use the word, and it may be improper but are we to
react to that act by the Administration with a provision that ties
the hands of the Commander-in-Chief and prohibits him and in
fact, or in de facto, forces him to comply with your initial position
against covert action?
Are you not just binding the President of the United States, who-
ever he may well be in the future, to just abandon covert action
altogether and before you answer that, let me simply say that I
know the ACLU is against capital punishment.
You are against capital punishment because you believe the laws
on the books against murder are sufficient for society to protect
itself against murderers. Let me simply say to you that are you
now reversing that and saying that you are coming down on the
President of the United States even though the laws on the books
are sufficient to take care of the activity that you are concerned
about?
Mr. HArpxxix. We have been accused of a lot of inconsistencies,
but that is a new one. Let me try to absorb that as I comment.
First on the question of whether information sometimes leaks
from the Congress. Sure that is true. But information also leaks
from the Executive Branch of the government, and I would argue
much more often. I think most people who have looked at it con-
clude that this-government leaks mostly from the top of the Execu-
tive Branch.
So I think that that is not a basis for suggesting that consulta-
tion is inappropriate.
I find it hard to believe that leaks of genuine secrets will occur
any more often, indeed I would argue much less often, from the
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eight leaders of the Congress than from the dozens and dozens of
bureaucrats and political appointees who get told about these oper-
ations even in the most limited kinds of situations.
But I also think the bill provides two other answers, it provides
one answer in terms of the leadership rather than the two commit-
tees in extreme situations, and it provides an answer in saying you
do not have to provide all the details. It recognizes I think, and
properly so, that certain kinds of operational detail should not go
to the Secretary of State and should not go to the committees be-
cause you are talking about directly and immediately placing lives
in jeopardy.
I think in our system of government, that is the only proper re-
sponse. Now, you say that this bill would tie the hands of the Presi-
dent in certain situations. I think it only ties the hands of the
President if you believe that telling eight Members of Congress or
two congressional committees prevents the covert operations from
going forward. I would say that is simply not true. It is not true
because in extreme situations like rescuing the Americans in Iran,
I don't think anybody is going to leak those details and it is not
true in other situations because even if the fact leaks, the covert
operation does not stop.
Look at Nicaragua. It eventually did become public. It became
public because the contras knew they were getting American aid
and told the press about it. That is the way these things usually
leak out. The people we are giving the money to brag in bars, in
Honduras or wherever, that they are getting American support.
Iranian arms merchants knew about this thing, the Soviet Union
and lots of other people listen to their phone conversations. That is
the way these things leak out, not by a senior Member of the Con-
gress or member of this committee making it public.
You cannot keep secret large-scale, ongoing covert operations of
the Nicaraguan kind or Iranian kind. Therefore, it is not true that
requiring the reporting ties the President's hands. Moreover, the
current statute requires reporting except in extraordinary circum-
stances, and reaches the judgment that that is a proper balance
that Congress should be informed in advance of those operations.
Now, the problem with the present law is that it is not simply
the Administration's view casually made during the crisis that it
need not report in advance. The committee was given, and I
assume has in its record, an analysis by the Department of Justice
written after the crisis essentially, saying that timely means
"never" essentially, saying there was nothing wrong with what the
President did, that the Justice Department interpretation of the
statute is that timely notice is a phrase of infinite flexibility and
that it authorized the 20 months and more of no notice in the Iran
situation.
Now you have to say to the Executive Branch that that is wrong
and I think the only way to do it is to change the words of the stat-
ute in a way that reflects that difference. But if Congress simply
reenacts the intelligence authorization leaving the language the
way it is in the face of that Justice Department post facto explana-
tion, then I think the President will tell. you and the .next Presi-
dent will tell you, you ratified it, you knew what we- meant, you
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didn't change the language and therefore, you accepted our inter-
pretation.
Chairman McHUGH. Dr. Sh ltz.
Mr. SHULTZ. It seems to me that the objective here is not and
should not be to punish this Administration. They are punished by
their own actions. What has occurred to the Administration be-
cause they didn't follow the procedures is quite adequate. They are
paying a very dear price. So we don't have to punish them, they
have punished themselves.
Therefore, it would be my argument that to change the law in
order to say to the Administration you guys went too far, I don't
think that is necessary.
Public opinion is telling them that. The fact is that the Reagan
Administration has suffered a tremendous political crisis. In my
own opinion, I don't think they will be able to go very far forward
with their agenda in what is remaining of the Administration.
Chairman McHuGH. We have a recorded vote now, and so I will
recess the committee for approximately 5 or 6 minutes and when
we resume, Mr. Stokes will have the floor.
[Recess.]
Chairman McHUGH. The Committee will resume its sitting.
At this point I call on Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman.
Dr. Shultz, I noted that in your testimony a little while ago you
said that you would have notified the Gang of Eight. Is that cor-
rect?
Mr. SHULTZ. I would have, yes.
Mr. STOKES. And I assume because that is what the law requires,
is it not?
Mr. SHULTZ. I think you were getting into an area where if you
are going to start clandestinely selling arms, and since the Con-
gress has the budgetary authority, that you should generally follow
the notification procedures.
Now, it may be, I know that the Administration would argue
that in the initial stages of that they felt for secrecy reasons they
should withhold notification. But I would disagree simply because I
think that when you are moving millions of dollars worth of arms
that it is not going to be a secret for very long, I would have noti-
fied when arms were transferred, that is correct.
Mr. STOKES. I notice also when Mr. Halperin testified, he indicat-
ed that he felt offended under these circumstances that the impli-
cation was that the Gang of Eight could not be trusted. Considering
the fact that in this case the Iranians-we are talking about the
Iranian situation-the Iranians were told what was going on, the
Israelis were told what was going on, there were numerous other
people in the White House who knew what was going on, does it
offend you that the so-called Gang of Eight was not told?
Mr. SHULTZ. Well, I am not offended by this, but I would have
notified you. I would argue that this is very controversial to sell
guns to the Iranians, because of the prior history and there would
have been strong opposition to that from both sides of the aisle. So,
consultation would have been prudent politically.
I don't think opposition would have been Just from the democrat-
ic side. And yet, while the Iranians knew about this and the Israe-
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lis knew about this, the Administration still wanted this not to be
a subject of public debate. I think it is because of the controversial
nature of it, but also the need to maintain some veil over the oper-
ation.
I don't know that I would use the term "offended" by it. I think
they should have notified Congress. I think they can probably come
up with an argument for not doing it early on. I don't think their
argument long-term is a defensible argument.
Mr. STOKES. Mr. Halperin, would you like to comment?
Mr. HALpEluN. I think the history is a little confused here. The
issue of a finding arose because the CIA was asked to help with the
first arms shipment of the Israelis. As you recall that was done
without a finding. As I understand it, the CIA then insisted if it
was going to be asked to help out again, there had to be a finding.
So the finding that was made was made not during diplomatic ne-
gotiations, but it was made by the President at the time that the
CIA was instructed to facilitate an arms transfer.
There were two other things at work here. One was there is an-
other law that requires Congress to be notified of arms transfers
and the only way the Administration could get around that was to
say it was a covert operation within the meaning of the Intelli-
gence Act, and therefore they had this argument which I think is
false but nevertheless they tried to make, that they didn't have to
notify under the Arms Transfer Act because it was a covert oper-
ation.
They couldn't have it both ways, saying it wasn't an arms trans-
fer, but it also wasn't a covert operation. So it clearly was a covert
operation from the moment the CIA got involved. There also was
as we now know an explicit agreement between the Senate Intelli-
gence Committee and Mr. Casey that the committee would be noti-
fied of arms transfers to countries with which we were not now
trading arms.
That was violated as well in this situation.
Mr. STOKES. Dr. Shultz, on this question of timely notice, that is
what the law presently or currently provides, is it not?
Mr. SHULTZ. That is correct.
Mr. STOKES. Nothing unconstitutional about that?
Mr. SHULTZ. No.
Mr. STOKES. Now the Stokes-Boland bill really does nothing
except clarify what timely notice will be, doesn't it?
Mr. SHULTZ. Well, I think you clarify timely notice but I disagree
with the time limit that you are putting on extraordinary situa-
tions. We realize, gentlemen, that we are talking about not the
norm, we are talking about the exception and we have used rare
exception to clarify that.
Now, timely fashion I agree can be tricky but I object to the 48
hours.
Mr. STOKES. What would you consider a timely notice?
Mr. SHULTZ. You know I tried to think about that because that is
a tough call.
I guess we have to find a point between 48 hours and what the
Administration did.
Mr. STOKES. And fourteen months.
Mr. SHULTZ. Fourteen months I am not here to defend, of course.
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Mr. STOKES. I understand.
Mr. SHULTZ. But I see 48 hours as a straightjacket.
Mr. STOKES. Thank you, Mr. Chairman.
Chairman McHUGH. Thank you, Mr. Stokes.
Mr. Shuster.
Mr. SHUSTER. Thank you very much, Mr. Chairman.
We certainly appreciate your testimony today. A couple weeks
ago in this committee we had a top secret briefing on a Presiden-
tial finding to initiate covert activity against the communists in
the Philippines.
The next week I picked up Newsweek magazine and read all
about it, and perhaps because although I have been around this in-
stitution for 15 years I am a new member of this committee, I was
stunned. And, of course, as you dig into it, you realize this is not
the exception; this is the rule.
It raised the question in my mind-and, indeed, I would acknowl-
edge Mr. Halperin's point that perhaps it was not this committee
or the Senate committee that leaked that information or other in-
formation, perhaps it was the Administration. I doubt it, but who
knows?
Doesn't this raise the vexing and very difficult question of
shouldn't we address ways in which to keep top secret information
secret and by that I mean a strengthening of our laws, of our
criminal laws? What is your reaction to that?
Mr. HALPERIN. Well, I am not sure-I think criminal laws which
apply to the press raise a number of other kinds of issues. I think
criminal laws narrowly drawn which apply to Executive Branch of-
ficials are appropriate. Congress passed such a law relating to
covert agents, the identities of covert agents. We objected to the
part that applied to the public but not to the part of it that applied
to government officials.
So I think the problem is to define a narrow class of information,
one which does not affect public debate on a range of issues. But I
would have to say that I do not think it will really solve this prob-
lem, because the leaks of information occur anonymously and they
are very hard to track down. I think people think that even if the
FBI investigates, it won't find out who did it. So I do not think it is
a solution to the problem.
I think one of the solutions to the problem is to recognize that
there are lots of things we try to keep secret that do not have to be
kept secret. I think the case that you cite is a good example. The
Philippines is an ally of the United States; there is an armed rebel-
lion going on against that government. We have every right to help
them deal with that rebellion and to do so openly.
Mr. SHUSTER. It is my understanding, however, that we not only
did it with Mrs. Aquino's approval, but she considers it very embar-
rassing that this information came out.
Mr. SHULTZ. Correct.
Mr. SHUSTER. So whether we might think it is--
Mr. HALPERIN. It is something that--
Mr. SHUSTER. Let me finish. We may or may not think it will
hurt our foreign policy. The fact that we have an ally who wanted
us to keep a secret but we didn't, now that has had a chilling effect
on _ other allies in future-cases. So it is not simply & -question-of our
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thinking that our country could withstand the exposure of this in-
formation, but it is the impact that it has on our friends around
the word.
Mr. HALPERIN. But I think that is a constant tradeoff. Other
countries are always telling us what their domestic systems require
and I think we have a right to tell them what our system requires.
I suspect she will take the aid, notwithstanding the leaks.
Mr. SHUSTER. Dr. Shultz.
Mr. SHULTZ. I think your point is very well taken. In the case of
the Philippines there are very good reasons why such publicity is
extremely dangerous for Mrs. Aquino. However, receiving covert
CIA assistance from the United States to fight the insurgency is es-
sential. So to make that a public policy means that most assuredly
if she does take it-and she may well-she is putting herself in a
very, very serious political situation in the Philippines vis-a-vis
those people who want to bring down that government.
We have to take into consideration in our foreign policy not just
our own domestic requirements but how to help friends who want
help and yet cannot overtly take that assistance, and the Philip-
pines is not the only example.
Mr. SHUSTER. Should we address the issue of strengthening our
criminal laws? How far should we go? Should we have an official
secrets act?
Mr. SHULTZ. I am not sure how far to go, but I think that if one
leaks something like this that there should be accountability and
maybe that would be a good subject to examine in terms of the
work of this committee. We have looked at it some in the past, but
maybe we ought to take a harder look. Some go so far as to say
that maybe we need the equivalent of what the British have (the
Official Secrets Act). I have not thought about that enough to take
a position right now, but certainly it is worth seriously examining.
Mr. SHUSTER. Thank you.
Thank you, Mr. Chairman.
Chairman McHUGH. Mr. Beilenson.
Mr. BEILENSON. Thank you, Mr. Chairman.
I am just thinking out loud. This is not directed to anybody at
the moment, but we have the problem of leaks under the existing
law, as I understand it. Our colleagues on the other side and Dr.
Shultz, are not suggesting we repeal existing law; is that correct?
Mr. SHULTZ. That is correct.
Mr. BEILENSON. So leaks, to the extent they exist, are a problem
and obviously they do cause a problem.
Mr. SHULTZ. Maybe it is one we should address.
Mr. BEILENSON. I understand, but the leak problem would not be
any worse under the proposal by Mr. Stokes and Mr. Boland over
what it is now?
Mr. SHULTZ. No.
Mr. BEILENSON. In response to my friend from Pennsylvania, I
think it is Pennsylvania--
Mr. SHUSTER. Yes.
Mr. BEILENSON. I always get Pennsylvania and Ohio mixed up for
some reason. Sorry.
With respect to strengthening criminal law, I think that the
problem is that we apparently cannot find or do not find those who
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do leak. There are existing strong laws that could be applied
against such people right now, so I am not sure if we need to tight-
en those laws.
We need to be able to find out where the leaks occur and apply
existing laws. If we found out that new laws are needed, that would
be another matter.
I have a question to ask Mr. Halperin. Granted, as you did and
as one must, that we are not talking about prohibiting covert ac-
tivities here, but simply you are testifying with respect to the pro-
posal by Mr. Stokes and Mr. Boland, just on that basis, on those
limited grounds, I assume you are supportive of the bill.
Mr. HALPERIN. Right.
Mr. BEILENSON. Would you draft the bill differently from what it
is now? Are there additions or subtractions that you think would
make it better or more enforceable or do you have any specifics?
Mr. HALPERIN. We do have specific suggestions.
Mr. BEILENSON. In your testimony?
Mr. HALPERIN. They are, and I would like to submit them to the
committee for the record.
Mr. BEILENSON. Okay.
Mr. HALPERIN. But I think you might want to--
Mr. BEILENSON. Were they in the material you submitted?
Mr. HALPERIN. They were materials we gave to the staff infor-
mally, not attached to my testimony.
Mr. BEILENSON. Can you testify now to us in any general way?
You do not have to, but if you can, just in terms of-are you telling
us you do have specific suggestions as to how you would amend this
existing law in ways somewhat different from the bill before us?
Mr. HALPERIN. Yes, and I would be happy to give you that. I
think you should, first of all, require that the President consult
with the members of the National Security Council before he
makes the finding. I think another way to substitute for public
debate is to do basically what the National Security Act originally
was intended to do which is to say to the President, consult with
this senior group of advisers before you make major decisions.
Mr. BEILENSON. He may well have, just picking Iran, I suppose
he may well have in some sense, at least on occasion.
Mr. HALPERIN. The history in the Tower Commission is that he
inherited an Executive Order from the Carter Administration
which required that consultation. He repealed it. He then issued a
secret directive which required that consultation and then, the
Tower Commission says, ignored that secret directive which was in
effect at the time of the Iran operation. I think the testimony at
least of the two Cabinet officers is that--
Mr. BEILENSON. But he could ignore your proposal then.
Mr. HALPERIN. But at least he would then be breaking the law.
There is always a question of how far you can go.
Mr. BEILENSON. You wouldn't require that the NSC approve his
finding?
Mr. HALPERIN. No, no. I think that would be unconstitutional.
I think I would strike all of the preamble section; the draft bill
strikes only that part of the preamble section referring generally to
the authorities of the President as Commander in Chief, but it
leaves in the section that talks about due regard for the protection
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from unauthorized disclosure of classified information. The fear I
have is that the next Justice Department will write a memoran-
dum saying that language is authority to withhold prior notice for
the same reasons. I think you just ought to say clearly that you are
requiring prior notice except in the circumstances specified in the
other portion of the act.
Mr. BEILENSON. Okay.
Mr. HALPERIN. I have two other suggestions.
Mr. BEILENSON. Please go on.
Mr. HALPERIN. I think you might want to consider indicating ex-
plicitly that the statute does not require the provision of details
about an operation that has been reported which relate to things
which would directly and immediately place lives in jeopardy.
Mr. BEILENSON. I agree. I think we should have that in existing
law, as I noted in our conversations with Admiral Turner last
week.
Mr. HALPERIN. It is implicit in the law; but if there is a concern,
I urge you to make it explicit.
Mr. BEILENSON. I think we have that concern and I do not think
it is intended that we know those things. That is a good suggestion.
Mr. HALPERIN. I have two others. I think the committee ought to
consider requiring under normal circumstances a 30-day delay be-
tween the Presidential finding and the initiation of the covert oper-
ation because if the purpose of the prior notice to the committee is
to permit the committee to hold hearings and then to give advice
to the President as to whether he ought to initiate the covert oper-
ation or not, I think, recognizing again that I would have an excep-
tion which said that unless the President found that to wait would
jeopardize the operation or harm the operation.
Mr. BEILENSON. But that is another loophole. I understand your
reasoning, but you start thinking immediately of situations where
the President would feel the same way, would not wait. Then you
will be arguing over the--
Mr. HALPERIN. I would let him do it and give you an explanation
of why he was not waiting.
Mr. BEILENSON. When will he have to give the explanation?
Forty-eight hours after?
Mr. HALPERIN. He would have to give you the notice right away.
Mr. BEILENSON. When?
Mr. HALPERIN. The prior notice would have to include a state-
ment that said I am not waiting the 30 days for the following
reason.
Mr. BEILENSON. Okay.
Mr. HALPERIN. I do not think it solves the problem, but it empha-
sizes that the purpose of prior notice is to permit the committees to
advise the President before he starts rather than try to catch up
with what he is doing. Those are the specific changes. I also think
having reviewed the testimony from the last time and from this
discussion that there is some reason to think that this thing is
written in very convoluted language because it attempted to meld
together the old Hughes-Ryan amendment with new language.
There is some reason to think it is worth starting over and trying
to say what the requirements are in simple sentences that follow
each other rather than with exceptions to the exceptions, and to
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lay out much more clearly what is required about covert operations
and distinguish that from the requirement of fully and currently
informed and notifying about other significant anticipated activi-
ties.
Mr. BEILENSON. I find the same problem. You have to keep going
one to the other to get it.
Mr. HALPERIN. You have to juggle them all around. We will try
our hand at that and submit it for the record.
Mr. BEILENSON. Thank you, Mr. Chairman.
Chairman McHUGH. Thank you.
Mr. Lungren.
Mr. LUNGREN. Thank you, Mr. Chairman.
Mr. Halperin, I am concerned, you know, in the past and in the
future that a President might not get the information to the Con-
gress that Congress deems is necessary, but I am also concerned on
the other side, as has been mentioned here, by revealing things
that were covert to the detriment of the United States.
So I can understand where you are coming from and understand
why we may have some differences in application here.
Is it an overstatement for me to say that judging from your arti-
cles and your statement here that you do not believe in the necessi-
ty for covert operations?
Mr. HALPERIN. Yes, I think I started my testimony by--
Mr. LUNGREN. But I--
Mr. HALPERIN. My view is that the conduct of covert operations,
which I distinguish from counterintelligence operations and intelli-
gence collection operations, are incompatible with the kind of
democratic society that we have and not necessary to defend the
security interests of the country.
Mr. LUNGREN. I can understand if I had that position why I
would not be concerned about the problem of leaks of covert oper-
ations because, in fact, I would think it would be a good thing,
frankly, from wherever they came.
But if you could assume for the moment that it is important for
us to
Mr. HALPERIN. I have tried to do that in all my testimony.
Mr. LUNGREN [continuing]. Engage in covert operations, what is
the alternative to the present situation if you superimpose this law
on it? What do we do if there are leaks intentionally taken by
Members of Congress? Are we to say that is just the price you pay,
because unless I am mistaken, virtually no criminal law with re-
spect to an Executive Branch leaker would cover Congress.
Mr. HALPERIN. Yes.
Mr. LUNGREN. But I would suggest you have constitutional prob-
lems if a Congressman or Congresswoman would leak it in further-
ance of his or her responsibilities here as he or she saw them.
Mr. HALPERIN. I agree. These things were debated in great detail
at the time the two intelligence committees were set up. I do not
remember whether you were involved in that process.
Mr. LUNGREN. No, I was not, but--
Mr. HALPERIN. Let me remind you of the answers in there be-
cause I think they are the right answers. There was a lot of discus-
sion about this, and the answer was judged to be that Congress, in
requiring the Executive Branch to give this information to the two
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committees, had an obligation to see to it that the committees did
not leak the information. A procedure was set in place which I
read in the papers now is being followed in the Senate with regard
to some statements that the former chairman of that committee
made; namely, the Ethics Committees of the two Houses were
given special responsibilities and obligations to investigate any alle-
gations of leaked information and to recommend to the house the
appropriate punishment for that.
Mr. LUNGREN. Are you aware of any actions finalized, taken
against anyone in the Congress for leaking secrets of the United
States?
Mr. HALPERIN. No, but I think the committees have been derelict
in their duties in a variety of ways, in oversight, and I think in
that way too; but the Congress has an obligation to police itself and
the appropriate way to do that is through that mechanism. And if
it needs tightening up in certain ways, we would not see any objec-
tion to that tightening up.
The other things the legislation establishing the two committees
did is to establish a procedure for Congress to make public informa-
tion that it gets from the Executive Branch that a Member thinks
ought to be made public. So if a member of. this committee is in-
formed in a secret briefing or something that he or she thinks
ought to be public and not secret, there is a specific procedure in
the rules of this committee and of the Senate to make that public.
I think a Member who has something that he or she thinks
ought to be made public has an obligation to follow those rules and
to seek through the procedures of the Congress to have the commit-
tee and the Congress authorize the release of that information. So I
am not at all suggesting that any Member who has anything either
has a right to get up on the Floor and release it or to leak it to the
press. I think that insofar as there are instances of violations of
those rules that the Congress has an obligation to take steps to dis-
cipline its own Members and fire its own staffs.
Mr. LUNGREN. I think it should, I think it does, but I wonder if
we have an ability to do that. The speech and debate clause of the
Constitution, I think, limits a lot of what we can do in terms of
real sanctions against a Member of Congress. I suppose you could
throw a Member of Congress out for leaking information, but I
wonder if the speech and debate clause would come into place in
those circumstances. I wonder if we are between the proverbial
rock and a hard place. Is it more like a reporter gets it, then once
the reporter gets the information you are constitutionally barred in
many ways from going after that reporter, you have to go back and
find out the source of the information; and, of course, you cannot
compel the reporter to tell you. So it sounds like you can protect
yourself; but once the passage of information takes place, it is vir-
tually impossible.
Do you have a similar situation here in which to the extent the
information is given to Congress you do not have any real constitu-
tional ability to either restrict the dispersal of that information or
to judge and then sanction anybody that does it.
If that is the case-and I sense that may be the case-I think we
have to take much more seriously the problem of requiring a Presi-
dent even under the most extreme circumstances to give that infor-
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mation to the Congress, as much as I want Congress to. have that
information.
Mr. HALPERIN. Let me say I think the hard problem is finding
out who leaked it. In the Executive Branch you can certainly
punish people that leak information. We do not argue with you,
and I do not. think anybody else has, that the President can't do
that. The problem is to find out who, whether it is from the Con-
gress or the Executive Branch. But I do not think it is true about
the Congress. I think notwithstanding the speech and debate clause
that Congress can make its own rules about the right of Members
to have access to and to release classified information which the
Congress gets in confidence from the Executive Branch of the gov-
ernment.
Those rules first appeared in the Senate Resolution 400; they
were carefully discussed and debated at that time. I think they are
constitutional. I think the Congress can say to a Member if you
want to get information that we get in confidence you have to
agree not to disclose it. Many Members of Congress do not want to
see that information, do not look at the classified report of this
committee; their position is they want to be free to scout around,
anything they learn on their own they will get up on the Floor and
say. I do not think you can stop that.
But I think you can say to a Member if you want to look at a
classified document, you have to agree to abide by the rules of the
Congress as to the procedure that we have for making our judg-
ment. I do not think the President can keep you from releasing it,
and these rules do not permit that. But I think the House of Repre-
sentatives can say to its own Members, we will discipline you if you
choose to get access to what we are keeping secret and then release
it to the public.
I would urge you to look at those rules and urge this committee
and the Ethics Committee to be more vigorous in enforcement.
Mr. LUNGREN. I just noticed that you indicated in one of your
proposals that we require the President to consult with his Nation-
al Security Council before he finalizes his decision and someone
suggested that that may be already required now under Executive
Order. You say but he can ignore it. At least he would then he
breaking the law.
I am not sure what that proves. I am not sure that we should be
trying to put a President into a box so that he breaks the law on
the one hand when it is so difficult for us to say, Members of Con-
gress, you are not to break the law and if you do, some conse-
quences will follow.
Thank you, Mr. Chairman.
Chairman McHUGH. Thank you.
Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
It seems to me we have insufficiently discussed the real world
today and many of these covert operations involve third country co-
operation and third country participation. It may well be that
these third countries do not want to cooperate or participate if
their nationals, their agents are not going to be protected. They
may feel a little queasy about knowing that our law requires the
disclosure within 48 hours, at least to eight people, at least to eight
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people, especially in view of the comments made publicly by the
former chairman of the other body's Intelligence Committee which
is now currently under investigation by the Ethics Committee over
there. Because we are not talking about political advantage; we are
talking about lives, people's lives are at stake.
And to hogtie an executive to a 48-hour period or 62 hours or
four days and 22 minutes is utterly unrealistic. The timely fashion
we concede was violated in the Iranian thing and Professor Shultz
so well said the Administration is paying a very heavy price for
that. I wish they had consulted with at least the gang of eight. But
it would seem to me a much more effective measure would be the
length of time during which the risk is so high that disclosure
would jeopardize the success of the operation and jeopardize peo-
ple's lives, whether they are hostages or cooperating agents in an-
other country or our own agents.
Last week I brandished the book by William Colby, "Honorable
Men," former director of the CIA. This week I have "Secrecy in De-
mocracy" by another former director, Stanfield Turner, and he
said:
In my confirmation hearings I had declined to agree to advance notification.
Three years after I was glad I had. The CIA was called on to provide covert support
for an operation by another branch of the government. Secrecy was vital to the
entire mission. Because the CIA support was technically a covert action, not intelli-
gence collection, we were required to report it to the Congress. Had we done so
before the operation, it would have been the only way the Congress found out that
the operation was being planned. It probably could not have been kept secret.
The argument can be made that the Congress should be informed of any oper-
ations undertaken by the Executive Branch. In fact, the Congress has attempted to
insure through the War Powers Act of 1973 that it is informed of military oper-
ations, but inadvertent informing of Congress through reporting on covert actions is
not the way to accomplish such a purpose.
Accordingly, I strongly opposed a move by the Senate Committee on Intelligence
to insert in the Intelligence Oversight Act of 1980 a requirement for prior notifica-
tion of all covert actions. Another reason I opposed prior notification was that I felt
it unreasonable to ask a person to risk his life and then tell him I was going to
notify some 30 Congressmen and their staffs about what he was going to do.
If the Congress someday does legislate prior notification-I know he is talking
about prior notification, but within 48 hours has the same disability in my judg-
ment-the Congress someday does legislate prior notification, the CIA may cease
some useful covert activities for fear of premature disclosure or it may just back
away from risky covert actions altogether to avoid the danger of arousing the Con-
gress again. In either case, the country loses.
Now, I know Mr. Halperin opposed covert action. As a matter of
fact, Mr. Halperin goes even further than that, just quoting from
your testimony, December 5, 1975 before the Church Committee, I
believe, you said, "I believe that the United States should no longer
maintain a career service for the purpose of conducting covert op-
erations and covert intelligence collection by human means. I be-
lieve also that the United States should eschew as a matter of na-
tional policy the conduct of covert operations."
So you do not believe, do you, Mr. Halperin, we even should have
a capability of collecting intelligence covertly? That was your posi-
tion then.
Mr. HALPinuN. That was my position then. That is not my posi-
tion now.
Mr. HYDE. You have changed your mind since then?
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Mr. HALPERIN. Yes, sir. I think we are all open to changing our
minds.
Mr. HYDE. I hope so. I sure hope so.
Mr. HALPERIN. I hope that is true on the other side of this table
as well.
Mr. HYDE. Well, we labor manfully, but we have less to work
with than you do, you understand.
Mr. HALPERIN. Right.
Mr. HYDE. Ideology kinds of bends reality sometimes, and that is
on both sides of this, I am sure.
Anyway, now we can have a career service, but we should not
exercise it because you are against all covert actions.
Mr. HALPERIN. I am against covert operations. I think the state-
ments there on clandestine collection are ones that I would no
longer subscribe to.
Mr. HYDE. You are a great believer that Congress does not leak,
but it comes from the Executive.
Mr. HALPERIN. More often.
Mr. HYDE. I believe that-on percentage-wise, how would you do
that? Sixty-forty?
Mr. HALPERIN. Seventy-thirty, eighty-twenty.
Mr. HYDE. Ninety-ten.
Mr. HALPERIN. You are getting it about right.
Mr. HYDE. I have a different view. I think Congressmen live and
die on publicity and, boy, they like to stroke the press and, boy, the
press knows who to stroke; and the way you become loved and be-
loved is by being a good source and we all have the press beseiging
us daily for information, especially with this Iranian thing going,
just for background, you know, without attribution, just to confirm
what I have heard from somebody else.
Then we have the Leo Ryan syndrome, I would call it, the late
Leo Ryan who told Daniel Schorr, which Schorr reprinted-you re-
member Daniel Schorr, he got the report from the Pike Committee,
the secret report and had a little problem with that. And he says
here, a member of that committee told me in an interview at the
time that he could condone such a leak if it was the only way to
block an ill-conceived operation. So if a Member abrogates to him-
self that power to say this is an ill-conceived operation and, oh boy,
are we polarized with a Republican President and a Democratic
Congress, why don't we just legislate it and that way we answer to
higher law?
That is what scares intelligence people whose lives are on the
line in these things and in the world of terrorism, in the world of
proliferating spies, and the Marines and the Navy, in the CIA, in
the FBI, not the ACLU, but these other organizations.
Mr. HALPERIN. Right.
Mr. HYDE. So it just seems to me that we should back up and
take a little more realistic view of this whole issue, especially when
our own committee, our own committee says in the black book they
have given us that the only time the Oversight Act has not been
implemented was the January 17, 1986 Iran finding. As far as we
know, all covert actions carried out since 1980, :again with. the ex-
ception of the 3 January 1986 arms transfer -activity with Iran,
have been the subject of findings.
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As far as we know since enactment of the Oversight Act, the
committees have been given notice prior to the implementation of
all findings. So, you know, we have got one incident that was a
major gaff, I concede that, and I think the price is being paid. But
if it really is not broken, I do not know why we have to try to fix it
because I think we are goi to screw it up.
Mr. HALPERIN. I would lie to comment on that. First of all, let
me say that at least when I was a bureaucrat, which was some
time ago, we were stroked by the press in the same way and asked
for things on background. I suspect it still goes on; that it is not
only the Congress that is visited regularly by the press and asked
to provide information.
Mr. HYDE. You did not have to be elected like we are. You see,
publicity, we want our names in the paper. You did have a passion
for anonymity, as I recall--
Mr. HALPERIN. But a desire to get our policies through which
sometimes requires seeing them in the press as well.
Mr. HYDE. A leak here and there.
Mr. HALPERIN. Which I never did.
Mr. HYDE. Heavens forbid, I am sure you never did nor have you
been the recipient of leaked information. I would wager my life on
it.
Mr. HALPERIN. I would turn it away.
Mr. HYDE. Yes, turn the other cheek.
Mr. HALPERIN. But I do want to say on the-I think that there is
operational detail for which that argument is ht. We now know
what Admiral Turner was talking about; the CIA wouldn't let him
reveal either, but they have since let him describe it and we know
it did for the committee. It was things it did to lead to the Iranian
rescue mission. I think, as I said, perhaps before you came in, I
think that kind of detail should be withheld. What I suggest as the
way to deal with that problem is to have a Presidential fording
that the CIA assist in rescuing the hostages from Iran and then for
it to be understood between the committee and the CIA and the
President that this kind of operational detail in that situation need
not be provided. I see nothing in the statute that provides or that
requires that operational detail, but I think given that this concern
is raised it would be appropriate to make that clear in the legisla-
tion, that that kind of detail which does place lives of agents direct-
11K and immediately in jeopardy is not the kind of information that
the committee needs.
Now, to say that the system does not have to be clarified because
it was only one exception to it-it was a very large exception.
Moreover, it has stimulated the Justice Department to write a
memorandum saying it was right. If you have not looked at the De-
cember 17, 1986 memorandum, Mr. Hyde, from Office of the Legal
Counsel of the Department of Justice, I urge you to look at it. The
problem is that having done that one operation, having done a
legal memorandum that says it was consistent with the law, if Con-
gress does not do anything, this Administration and the next will
believe that that is the correct interpretation, and I think you will
have more exceptions to the rule than now.
Mr. HYDE. I have that and I think an argument can be made, a
legal argument can be made that the law was not broken. I prefer
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to make my position on one of policy; I think certainly the spirit of
the law was broken.
Mr. HALPERIN. I agree with that.
Mr. HYDE. But I think it was politically inept and harmful.
Mr. HALPERIN. It is precisely that a legal argument can be made
a law was not broken and because everybody understands the
intent of the law was broken that I think the law ought to be clari-
fied so that legal argument cannot be allowed to stand.
Mr. HYDE. You are for nailing it down to 48 hours then?
Mr. HALPERIN. I do not know that I would bleed and die for 48
hours, but I think--
Mr. HYDE. Somebody is going to have to because that is in the
bill and we have not heard anybody yet who wants to bleed and die
for 48 hours.
Mr. HALPERIN. I would give you 50.
Mr. HYDE. All right.
Mr. HALPERIN. I would bleed and die for 50 hours.
Mr. HYDE. Okay.
Chairman McHUGH. Thank you, Mr. Hyde.
Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman.
I just would take a moment to make a statement. Both this
morning and at last week's hearing the question has been raised
with reference to a matter which appeared in Newsweek magazine,
and the inference that was permitted was that that information
was information which had been given to this committee and had
been leaked. As chairman of the full Intelligence Committee, I
want to make it patently clear on the record that no one has come
to me with any evidence that this committee or any member of this
committee or its staff has leaked any information. I think it is in-
cumbent upon any member of this committee that does have any
such information to bring it to my attention as chairman of the
full committee. In compliance with the statement made by the
Speaker of the House at last week's hearing in which he said that
at any time such evidence is brought to his attention, he would
remove such a person from this committee. I would bring it to his
attention for that purpose.
Chairman McHUGH. Thank you, Mr. Stokes.
I would like to express on behalf of the entire subcommittee our
appreciation to you, Dr. Shultz, and to Dr. Halperin for your con-
tributions this morning. We appreciate it very much.
Our next two witnesses will testify in a panel, and they, like our
prior witnesses, are very distinguished gentlemen with experience
in this area and we appreciate their being with us today. The first
is Mr. Lloyd Cutler, who is a founding partner of the law firm of
Wilmer, Cutler and Pickering, and during 1979 and 1980 was coun-
sel to the President of the United States, Jimmy Carter. In that
latter role, Mr. Cutler conducted the majority of negotiations lead-
ing to the 1980 Oversight Act about which we are concerned this
morning.
Our second panelist will be Mr. Bill Miller, who has an extensive
background in foreign affairs issues generally and in Congress' role
in the area, in particular. He was an officer in the Foreign Service
from 1959 to 1967, with service in Iran and as a special assistant to
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the Secretary of State, Dean Rusk. From 1967 to 1972 he served on
the staff of John Sherman Cooper and was staff director, in order,
of the Senate Select Committee on Presidential Powers and Emer-
gency Powers, the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities, and the Senate
Select Committee on Intelligence. He is a former associate dean at
the Fletcher School of Law and Diplomacy, Tufts University, and is
now president of the American Committee on U.S.-Soviet Relations.
We appreciate both of you gentlemen being with us. I wonder if
we might start with Mr. Cutler.
STATEMENTS OF LLOYD CUTLER, ESQ., WILMER, CUTLER &
PICKERING, FORMER COUNSEL TO THE PRESIDENT; AND WIL-
LIAM G. MILLER, PRESIDENT, AMERICAN COMMITTEE ON
UNITED STATES-SOVIET RELATIONS
STATEMENT OF LLOYD CUTLER
Mr. CUTLER. Thank you, Mr. Chairman.
I should first give my own background and confess my biases. I
think you would have to look on me as more of a Presidential
person than a congressional person,. although on most of the issues
before you now I do come down on the side of Congress.
But I was in the intelligence business, as it is called, as a very
young man during World War II, and I helped to draft the report
of the so-called Brownell Committee in 1950 that came in after the
invasion of South Korea to see what we had missed in communica-
tions intelligence which was a business I had once been engaged in.
That was the committee that led to the creation of NSA and the
establishment of the responsibilities of the Director of Central In-
telligence as, in effect, the chairman of the board of all the intelli-
gence activities of the government.
It is some commentary on what has happened to us between 1950
and the present time that the Brownell Committee, which was not
Herbert Brownell but a General George Brownell, a distinguished
New York lawyer, came into existence and worked for six months,
made recommendations and went out of business and nobody even
knew it was there.
Its recommendations, most of them, were adopted. That, of
course, could not possibly happen now that the intelligence busi-
ness is a shared activity. We read about it every night or hear
about it on the evening news.
I also took part in some of the decision making relating to the
Iran rescue mission, in particular whether or not there was a duty
to consult Congress, and I worked along with some other members
of the Legal Counsel's Office with Bill Miller on the drafting of the
1980 amendments to the intelligence statute.
I have sent to Mr. O'Neil at his request my detailed comments
on the bill. I gather those have been made part of your record. I
won't go into those now, but I would say on the issue you have just
been discussing I certainly agree that Congress has the right and
the duty to exercise an oversight function in the intelligence area
and that the key to exercising an oversight function is to know at
least at some stage of the game what is going on.
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Congress also, however, has a duty that goes along with this
power of oversight to keep intelligence secrets when it is necessary
to do so. I do not mean to suggest that Congress has been deficient
in carrying out that duty. It is always hard to know when leaks
happen where they came from, but there is no question that leak-
ing has become a very, very serious problem and that the fact of
leaking inhibits Presidents and those who conduct intelligence ac-
tivities in being as forthcoming as they might otherwise be if they
had some assurance that what they imparted to a congressional
committee would remain right there except in the rare case where
Congress collectively felt some need to go public.
I myself do not think Congress has done enough on that subject.
I defer to Bill Miller who knows it much better than I do, but there
are weapons available to the Congress such as SNEP type con-
tracts, such as the selection power, the consequence that can be im-
posed on right to serve on one of the intelligence committees, such
as greater discipline on members of congressional staff of the kind
that is imposed on the Executive Branch and I do not mean to sug-
gest polygraphs or anything of that type.
I do think Congress could probably do more to reduce leaking or
at least build, a confidence, greater confidence on the Executive
Branch side and intelligence agency side that leaking is unlikely to
occur than it has done.
Having said that though I think the system that was worked out
in the 1980 statute is a very sensible system. I also think it was not
only the spirit, but that the letter of it was breached in the Iran/
Contra affair. I am not myself an advocate of a 48-hour no ifs and/
or buts notice, but I do think timely fashion was twisted in a way
that is inexcusable, that there is no way that an 11-month period
or 14 months or whatever it was could be regarded as a timely
manner, and we all know that intent was not even to inform then
but for the fact that the story leaked somewhere else. The intent
may well have been never to inform.
I think that, one, it is a very difficult problem to decide how to
correct for that. Part of it, of course, is trust. I have read what Sen-
ator Moynihan has said and written in his testimony before you. I
think it is fair to say that there was a breach of trust by the direc-
tor of the CIA and his people, a violation of his own agreement-I
am going back to more like the mining and the whole business of
the support of the Contras at a time when Congress had decided
against congressional appropriations for that purpose.
That now poisons this entire atmosphere. I hope that will end
with the appointment of Bill Webster and that trust will be rebuilt
and that is far more important than any words that you can put
into the statute.
I do think though that you should do something about the timely
notice requirement, either put in a deadline and as far as I am con-
cerned I see nothing wrong with a deadline of even three months
or six months if it is as soon as feasible, but in no event later than
a deadline that would be sufficient to cover most operations.
Another alternative might be to impose on the President-and I
do not think it can really go any lower-a duty to notify you when
he has initiated a special intelligence activity but has not informed
you about it. If he simply said to you, if he was required to say to
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you I have initiated an activity which for the highest reasons of
state or protection of sources or dealings with foreign powers or
whatever I cannot tell you about now, at least then you would be
alert and every time the director of the agency came back to see
you, as he must, you could say when are you going to tell us about
that particular activity.
Something like that might be a better remedy than a flat time
period, particularly a 48-hour period. I also think that it would be
better not to take out the preamble clauses that reserve both to the
President and the Congress their respective constitutional responsi-
bilities. Taking it out does not change the fact that there are such
responsibilities. Leaving it in and leaving to the President and, of
course, to yourselves the right to depart from the letter of the stat-
ute in particular cases, it seems to me, is a sound process. Since
they are not criminal statutes, and, of course, they are carefully
crafted allocations of this shared power to manage foreign affairs
and provide for the security of the country, if the President were to
take the position that because of a particular constitutional respon-
sibility in a particular case I am not required to give you the
notice, I think he should be left with that. He bears a heavy
burden of proving if the facts as we all know in the modern world
will come out sooner or later, in any event, and he would then
have to defend himself to the public and to you for not having
given the notice that was required in the statute.
I would also suggest you consider-it may not be necessary-but
if you feel that trust that you want to place and inevitably must
place in the end on those who are conducting intelligence activities
is being abused, if you think it is ever repeatedly being abused, you
should take more seriously both your impeachment responsibilities
and also the possibility which was a suggestion made by Mr. Madi-
son in the very first Congress, that you should consider changing
the term of the director so that it is not simply indefinitely at the
will of the President but so that it is at the will of the President
but for not more than so many years after which he would have to
be nominated again and you would have another chance to go over
his record and refuse to confirm him, even though you were not
ready to impeach, if you felt he had committed and not corrected a
very serious breach of trust. That is what Mr. Madison proposed
for the Comptroller of the Treasury back in the first Congress who
was going to keep the accounts of the government.
My own view is that would be constitutional. It may not be nec-
essary the moment, and I personally have the utmost faith
b~ on 30 years of personal friendship and acquaintance with
Judge Webster, and it may be that it is something to just keep in
mind if at some future time your trust is violated again.
Chairman McHUGH. Thank you, Mr. Cutler, very much.
Mr. Miller.
STATEMENT OF WILLIAM G. MILLER
Mr. MILLER. Thank you, Mr. Chairman.
It is an honor to be asked to testify before this subcommittee. I
have been asked to focus on oversight matters that I directly expe-
rienced during the period that I served as staff director of the
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Senate Intelligence Committee. As staff director of both the investi-
gative phase and the later oversight mode from 1975 to 1981, I
served under five chairmen. I was directly involved in negotiations
leading to oversight guidelines under Executive Order-and I
worked with Lloyd Cuter on these things-agency regulation as
well as the statute passed in 1980 known as the Intelligence Over-
sight Act of 1980, which modified the so-called Hughes-Ryan
amendment and added a new section to the National Security Act
of 1947.
I have served in both the Legislative and Executive Branches,
first as a Foreign Service officer and, later, as a Senate staff aide
working on foreign policy and national security issues during seven
Administrations of both parties. I know how difficult it has been
for the legislature to find an effective and constitutionally sound
balance between the competing requirements of the Executive and
Legislative Branches in the area of secret national security activi-
ties.
I do not have to remind this committee that secret activities are
among our country's most difficult problems of governance. In a
time when we are all worried about the loss of secrets through trai-
tors, espionage and spy wars, we find ourselves in the curious legal
situation of not yet having clearly defined statutes which allow us
to determine what should be classified as secret. We do not have a
classification system defined by law. We have some espionage
laws-some few areas of protected information such as communica-
tions intelligence and the names of agents. At the other end of the
balancing question, we do have Freedom of Information statutes,
which under certain limited and controlled circumstances, release
to the public information judged upon review to be no longer sensi-
tive.
From a legal point of view and from the perspective of those in
government who must plan, decide, undertake, oversee or evaluate
`secret activities," the very foundations are shifting and uncertain.
Perhaps the ebbs and flows of perceptions of danger to our coun-
try's national security are so great and so devoid of consistent pat-
tern that statutes which cover most circumstances cannot be writ-
ten. I know these are issues which this committee and others in the
Congress have to grapple with continually. But they are, nonethe-
less, issues that remain unresolved and underlie some, if not all, of
the difficulties you have experienced in trying to exercise effective,
constitutionally appropriate oversight of intelligence activities.
In a fundamental way, the Oversight Act of 1980, and the
amendments you are now considering in H.R. 1013 are a part of
the pattern of statutory efforts to build a sound system within our
constitutional framework of divided powers and shared responsibil-
ities, for the governance of what we have called secret activities.
They represent what some constitutional scholars call "framework
legislation," that is, they are attempts to establish through statutes
agreed-upon processes and to use those legislative procedures to
create a constitutional balance between the coordinate branches of
government.
The key to controlling secret activities, the requirement for the
governance and control of secret power-and this is the practical
issue for oversight committee-is in the first instance an awareness
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of the activity. There is no possibility of policy discussion, consulta-
tion, approval or limitation,. unless the activity proposed is made
known. The guts of the oversight process contained in the Intelli-
gence Oversight Act of 1980 concerns three principal factors: first,
what information shall be transmitted; second, who in the Congress
shall be informed; and, third, when the proper parties should be
made aware of the covert plans. The 1980 statute is a conscious at-
tempt to prescribe the obligations of the Executive and Legislative
Branches with regard to knowledge about secret activities which,
in the language of the act, "are the responsibility of, are engaged
in, or are carried out for or on behalf of any department, agency,
entity of the United States." That clause captures the whole bag of
secret activities.
Information about secret intelligence activities to be reported to
Congress was intended to be all inclusive-not selective or in on re-
spect exclusive-whether these activities were conducted by the
CIA, the White House, or some ad hoc basement group. According
to the statute the activities were to be reported whether they were
performed by employees of the government directly or indirectly,
or by other governments, directly or indirectly on our behalf, or by
private individuals or groups.
So this law was intended to cover liaison arrangements with
other governments, private activities, including any knowledge our
government may have of these activities; it was all to be made
known to the Congress.
It should be emphasized again that the drafting of the Intelli-
gence Oversight Act of 1980 was a joint effort by the Legislative
and Executive Branches. This statute could not have been passed
any other way. This legislative attempt to arrive at a consensus be-
tween the two branches was a conscious, agreed upon process, car-
ried out over five years with the approval of two Presidents (one
from each party), a succession of Secretaries of State, Defense, Di-
rectors of the C, DIA, NSA, FBI, the leadership of both Houses of
Congress as well as a broad spectrum of Congressmen and Sena-
tors. The introduction of statutes governing oversight was deferred
by agreement until there had been considerable interaction be-
tween the Oversight Committees that had been formed in 1976-
1977 and the Executive Branch and a trial run in a series of Execu-
tive Orders, promulgated by Administrations of both parties. These
Executive Orders were ointly drafted by the appropriate Members
and staff of both branches of the Congress and the White House. I
led the staff drafting on the Senate side over that five year period.
Without such a joint process, and a reasonable period of testing
and experimentation, it was the shared view or the leaders of both
branches that a statute on so sensitive a matter as secret activities
affecting the national security should not be passed. There had to
be agreement between Presidents, the national security depart-
ments, agencies and entities, and the overwhelming majority of
both Houses of Congress that the process would meet the needs of
both branches and would do so in a constitutionally appropriate
way. I can attest that over those five years there was considerable
give and take, and I am sure Lloyd Cutler would agree. There were
hundreds of meetings and thousands of drafts and letters, and I
have to admit a great many false starts.
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The basic premise of the 1980 Oversight Act is that our Constitu-
tion provides means for the Legislative Branch to give its advice
and views to the Executive Branch on any and all matters of public
policy. This applies particularly to areas of great sensitivity such as
national security that can affect the security, reputation or integri-
ty of the nation, or require the expenditure of funds and the use of
personnel or facilities. There was an overwhelming consensus in
1980 that meaningful consultation between the branches was a sen-
sitive protocol prerequisite for sound policy and effective constitu-
tional government. The Constitution provides, as you well know,
for a system of divided powers, but also prescribes ways that the
two coordinate branches should work together.
There was also a recognition in 1980 that meaningful consulta-
tions, advice and the possibility for sound policy, which would re-
ceive long-term popular support, required an awareness of a pro-
posed activity before it takes place. There was also an awareness
that some actions would have to be taken in response to unforeseen
events, and particularly events that required immediate reaction,
events that have to be taken quickly and in a protected environ-
ment. As a consequence, there was a recognition that a special pro-
cedure would have to be created to deal with those few cases where
consultation and deliberation may have to be foreshortened or in
some cases impossible. This latter point shows the necessity of
having established rules of procedure in such a sensitive area of
government activity as secret operations.
I would like to turn to the first issue of what categories of infor-
mation were expected to be made available through the Oversight
Act. The congressional view held throughout the period of negotia-
tions of five years was that all intelligence information should be
available to the Congress without exception. The dominant initial
arguments, advanced by some in the Executive Branch, that there
were a number of categories of information so sensitive that Con-
gress should not have access to them-these arguments that I hope
could be any exclusive categories were disposed of, at least in
theory.
After careful consideration of actual cases and a series of hypo-
thetical circumstances, and the pragmatic experience of the over-
sight process over several years, it was accepted by both branches
including the operations departments and agencies that Congress
had a right under the Constitution to any and all categories of in-
formation. There was, however, one hypothetical case developed,
that Lloyd Cutler and I developed, that helped define the outer
limits of access, the so-called "mole in Ruritania" example. In this
imaginary case, a source has suddenly become known to the Presi-
dent alone by means external to the U.S. and known to the Presi-
dent alone. This source holds the key to the survival of the United
States and because of a complicated series of circumstances, the
President cannot inform anyone else about the source's informa-
tion without risking the destruction of both the source and the
United States. This is obviously an extreme,. improbable case, but it
was agreed the President had a constitutional duty not to inform
anyone else, including Congress. And here, at this theoretical
boundry line, tough argument begins: If the circle of knowledge
could extend with safety to one or two people beyond the President,
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the exclusion of Congress from the circle of knowledge would no
longer apply. It was agreed that there was no valid way of confer-
ring more loyalty or security on a White House aide than on a
House leader or a committee chairman. Constitutionally, we
agreed, once the circle was widened beyond the President himself,
the Legislature had as much right to the information as the Execu-
tive Branch. It was recognized, however, and Lloyd knows this, be-
cause he and I helped develop those procedures that some areas of
activity required maximum care and protection by both branches,
such as sources, methods and the details of ongoing operations.
These were the issues that we both recognized that required this
very sensitive handling.
The fundamental and most difficult issue between the congres-
sional oversight committees of the Congress and the Executive
Branch concerned the issue of when, as Congressman Hyde men-
tioned, prior notice was held off for a long period. In fact, before
the legislation was passed in 1980, prior notice of all covert actions
was given to the committees from 1975 or only the statue was def-
ferred until 1980 and not the actual practice of providing ratifica-
tion of covert actions and other forms of secret activities.
As early as 1975, during the period of the investigation of the in-
telligence agencies, prior notice of all covert actions was a require-
ment and the actual practice. In 1974, the Hughes-Ryan amend-
ment required the President to report all operations in foreign
countries "to the appropriate committees of Congress" (which was
determined in 1974 to be eight committees) in "timely fashion." As
a practical matter, after the establishment of permanent oversight
committees in the House and the Senate, in 1976 and 1977, all
covert actions were reported only to the two committees. So
Hughes-Ryan was inoperative after 1976 anyway.
Part of the tradeoff, and this was the tradeoff between the two
branches, arrived at in the 1980 statute, was the agreement to
reduce the formal reporting requirement to only the two intelli-
gence oversight committees in return for what was in 1980 already
the regular practice, a clear expression of the obligation of the Ex-
ecutive Branch to report any and all information concerning intel-
ligence activities in a manner and at a time required by the over-
sight committees.
The principles in the Intelligence Oversight Act of 1980 that
define when intelligence information should be supplied should
now be discussed, because they affect Congressman Stokes' and Mr.
Boland's proposed legislation.
The first principle, known as the right of complete access, is the
requirement of the Executive Branch through the Director of Cen-
tral Intelligence, to keep the committees "fully and currently in-
formed of all intelligence activities which are the responsibility of,
are engaged in by, or are carried out for or on the behalf of any
department, agency or entity of the United States ..."
The realm of intelligence information covered was intended to be
all encompassing and is so expressed. The phrase "fully and cur-
rently" has a long history. It goes back to Section 202 of the
Atomic Energy Act of 1946 which created the Joint Committee on
Atomic Energy. That committee was kept fully and currently in-
formed of any and all information pertaining to atomic energy
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matters. How fully and how currently was determined by the Joint
Committee it self, which provided funds for all such activities. The
history of that committee amply documents how the power of the
purse authority was used by that committee to assure that the
committee was informed in accord with its wishes.
In certain indicated categories such as covert action and signifi-
cant collection programs, the oversight committees require, in what
should be regarded as the second principle of the Oversight Act,
that they be informed before actions were undertaken. It was un-
derstood that other categories of intelligence activity that required
prior notice could be added from time to time. For example, the in-
telligence oversight committees now require prior notice of any
prospective use of the contingency fund. That requirement was
agreed upon and put into effect after the act was passed. There are
also a number of areas of activity in which the intention of making
transfers of funds require that the two committees be informed
before such actions are taken.
I want to turn to the convoluted language of 501(1XA) that was
developed by Senator Howard Baker, then a member of the Intelli-
gence Committee, who held the view that while it was constitution-
ally proper to compel the Executive Branch to inform the Congress
before an anticipated secret intelligence activity, there was no con-
stitutional power or authority to compel the President to obtain ap-
proval of that action before acting. While he was obligated to
inform the committee prior to the action, he was free to act on, his
own constitutional authority if he felt it was necessary. That was a
majority view.
~tion 501(1)(B) was intended to deal with a few very sensitive
issues of vital importance that required extremely careful han-
dling. In these very few cases the access could be limited to the
"gang of eight." It was believed that extraordinarily fragile oper-
ations like the Iran rescue attempts were the kinds of activities
that might fall into this category.
"Timely fashion" as it was used in Section 501(b), while it does
have a reference back to Hughes-Ryan, was, in fact, intended to
deal with those situations in which it was not possible to inform
the Congress because the appropriate committees or Members
could not be contacted. It was believed that there would be very
few cases at the time of the drafting. It was believed that such
cases would be rare or perhaps would remain hypothetical. A time
delay was never intended to be built in. On the contrary, this after-
the-fact reporting contained in this section was to take place as
soon as possible. The possibility of a delay of more than a few
hours was never contemplated. Nor was there envisioned the need
for a delay of 48 hours and certainly not one of 11 months.
I should say the constitutional authority the President may feel
he has to act without regard to the Congress still remains. He can
do that, but he does so at his peril. This issue something that Lloyd
Cutler and I discussed at great length, and I think there was an
understanding on that issue.
That is the reason for the preamble language in the 1980 act, to
take account, historically, of the argument and the reservoir of
flexibility that both sides thought they had and should reserve.
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In sum, therefore, under the 1980 statute the Executive Branch
was required to report all intelligence activities as follows: (a) All
covert actions and significant collection activities would be report-
ed prior to implementation; (b) If the actions were of such a vital
nature and so urgent that they had to be undertaken even though
Congress was not informed, with the President acting on presumed
constitutional authority before Congress was informed, only be-
cause it was physically impossible to get word to the appropriate
committees or Members, such actions had in any case to be report-
ed as soon as possible thereafter. A built-in time delay was not the
intention of the act; (c) All other intelligence activities were to be
reported as required by the committees "fully and currently." This
all inclusive phrase meant-and I believe it means for you today-
most secret activities would be reviewed in the normal process of
the consideration of the budget. Reports on particular activities of
interest to the committees could be required in accordance with
particular circumstances. Such reports could include prior notice
on any and all of a broad range of secret activities. A good example
is a release of funds for certain specified activities that are now
part of the budget process.
It was always understood that new initiatives in any aspect of in-
telligence activities, if they had important or vital-and there are
arguments on those phrases-implications for policy, cost or risk
would be reported before they were carried out.
During the six years I was staff director, I was involved in all of
the discussions, negotiations and drafting of the key understand-
ings, Executive Orders and statutes at issue. Between 1975 and
1980 procedures were developed to assure that Members could be
contacted at all times, that secure facilities and security procedures
existed and that the committees' requirements for information
were fully understood and accepted, not only by the White House,
but by the CIA, FBI, NSA and others.
It took work and constant rigor to assure that the requirements
were being met. As Admiral Turner has already testified, the Exec-
utive Branch withheld information on one issue in the 1976-1980
period and that was the Iran rescue effort. When postmortems on
these operations were studied by committee members, it was the
view of an overwhelming majority that there was no convincing
reason why the Intelligence Committee chairman could not have
been informed or deemed at least as trustworthy as the consider-
able number of Executive Branch officials who were aware, includ-
ing several White House officials not directly concerned with the
operation. The view was then expressed by congressional leaders
that meaningful consultation and advice can only be given if the
time and occasion are available. After the fact advice is of little
use, as you know.
Consultation, of course, means many things. There is an all too
familiar kind of consultation in which the Executive informs Con-
gress at a point when the decision or action has already been
taken. This kind of "consultation" is, at best, a kind of record keep-
ing.
You have a situation where you are taking temperature to find
out what Congress might do in a given case.
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There is a second type of consultation which could be likened to
taking the temperature. Selected, usually sympathetic, Senators or
Congressmen, are informed in an informal, even private way about
the direction of administration policies. The purpose of "consulta-
tion" in these instances is to get advice on the likely reaction of
Congress to policies or decisions that they will, in fact, have no
part in determining.
Finally, there is full consultation, which means fully discussing
an issue with a microcosm of the Congress and seeking advice and
reactions before a policy is decided. In most cases this means a
committee. A good example where real consultation can take place
is the notice on covert action programs of the CIA, which is given
to the intelligence committees prior to their implementation.
Turning to H.R. 1013, under its provisions, it is proposed to
strike from the preamble the phrases which do nothing more than
affirm that both the Legislative and Executive Branches have
rights and duties under the Constitution. But in my view there
would be no substantive loss or gain by striking the language.
There are good historical reasons which were seen as important at
the time for the inclusion of the language. If you agree that it does
not add or detract any authority I would leave it.
Striking (b) of Section 501 might clarify what has become, appar-
ently, a confused reading of what was intended in 1980.
The new (e) which you have prepared for Section 501 creates, in
my view, a built-in time delay of 48 hours and would open up a
loophole where one did not exist before. If you want to give advice
and to engage in real consultations on the crucial issues, I would
not specify a 48-hour time period to defer reporting. I suggest,
rather, that you modify (e) to reflect an obligation to report "as
soon as possible and in no case later than 48 hours." The appropri-
ate committees or congressional leadership can be reached within
hours of any foreseeable circumstance except possibly during an
all-out nuclear war. I suggest that you make it clear that the obli-
gation is to report in writing immediately or as soon as possible
thereafter. Further, I would make this requirement clear through
legislative history, committee reports, Floor colloquy and written
understandings between the leaders of Congress and the White
House, incorporating the appropriate procedures.
I would end these coments on your proposed legislation that by
saying it in no way diminishes the flexibility of the President to act
under his constitutional rights, whatever they are. Whatever a
President's interpretation of his rights are and whatever a particu-
lar President's view of his own power may be, a President will use
that power as he deems it his responsibility. The preamble really
was aimed at leaving that discretion which cannot be taken away
from him anyway by statute.
Finally, Mr. Chairman, it seems to me that the strength and in-
tegrity of our democratic constitutional system depends upon an in-
formed President, Congress and public. Secret intelligence activi-
ties pose a very difficult problem of governance for our open demo-
cratic society. It has taken over 40 years to develop a reasonably
workable system controlling secret activities that fits within our
constitutional framework of accountability, divided power and par-
ticularly shared responsibility.
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The National Security Act of 1947 which created the vast, power-
ful structure of secret activities our nation now possesses is the
first legislative great milestone in the post World War II national
security era. The Intelligence Oversight Act of 1980 which sought
to bring the great power of secret intelligence activities under con-
gressional review in a constitutionally appropriate and reasonably
systematic accountable way is a second crucial enactment passed
by the Congress and signed by the President to protect our free-
doms. I am sure that the members of the committee who have such
great responsibilities for assuring that our country has the means
necessary to protect our liberty from enemies both foreign and do-
mestic will continue as they are doing here in H.R. 1013 to seek
more effective ways to maintain the constitutional balances crucial
for the preservation of our democracy.
Thank you very much.
[The statement of William Green Miller follows:]
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TESTIMONY ON H.R. 1013
THE INTELLIGENCE OVERSIGHT AMENDMENTS
OF 1987
Before the House Permanent Select Committee
On Intelligence,
Subcommittee on Legislation
Submitted by:
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Chairman McHUGH. I want to thank both of you gentlemen for a
very thoughtful presentation. I found the background of your work-
ing together to construct this framework legislation in 1980 very
interesting, indeed.
I would like in just a moment, Mr. Cutler, to ask if you have any
reaction and response to Mr. Miller's testimony, but I would like to
direct your particular attention to the question of consultation, the
importance of consultation.
It seems to me as you have described that background that in the
1970s through 1980 we had Administrations including the Ford Ad-
ministration, which recognized the importance of some consensus
in the conduct of foreign policy, and understood that in order to
sustain a foreign policy, in order for it to be effective and workable,
you had to have some essential understanding and support on a bi-
partisan basis within the Congress and between the Executive and
the Congress. Also, you had Administrations where covert activities
were seen as exceptions rather than as the rule.
Frankly, in my own view, the current Administration does not
appreciate the importance of having more bipartisan consensus for
the conduct of foreign policy and has looked upon covert operations
in particular as a more useful tool for the conduct of foreign policy.
It has seen the Congress, where it thought that the Congress might
raise objections to policy, as a hindrance to be avoided, and it is
precisely for that reason that we got into the Iran arms situation.
That, frankly, is not an aberration in my mind but rather a re-
flection of an attitude which has prevailed in this Administration.
If I am right, Congress, if it is concerned about this, as many of us
are, has to do F'mething about it. We have to assure ourselves that
we have not only information but an opportunity to consult on fun-
damental policy.
In the Iran case the President covertly changed in a very funda-
mental way the policy of the United States, and it was significantly
different than the overt, expressed policy which he himself had
been stating. We did not know about it for a long time.
My question, Mr. Cutler, goes to your specific proposal which as I
understand it, would be to say, well, the President should give
notice after the fact as soon as feasible but not later than three
months or four months or whatever certain limited cases.
My concern with that is that we would have no opportunity or
any meaningful consultation on fundamental policy where the
President's covert operation effected a change in fundamental
policy. I think, if I understand Mr. Miller's testimony correctly, he
is concerned about that, as I am, and would suggest that it should
be immediately or as soon as possible but no later than 48 hours. I
think there may be a difference of view here between the two of
you. I would like you to react if you would.
Mr. CUTLER. I do not think, Mr. Chairman, there is that much of
a difference of view. I think it is more a matter of a difference in
types of special intelligence activities. When it comes to the han-
dling of an agent or some other intelligence source or, let's say, an
in-and-out rescue mission such as the 1980 Iran rescue mission,
those do not involve fundamental changes of policy, foreign policy.
There are powerful reasons for narrowing the group that knows
in advance what you are doing as much as possible. On the other
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hand, when, as you point out, a secret change in policy is made
such as the provision of the arms to Iran at a time when we are
publicly proclaiming that Iran is a terrorist state that should not
be receiving arms and urging other countries not to supply them-
that is a secret foreign policy. That is a change in policy. That, it
seems to me, is wrong on all sorts of counts, including the failure
to notify Congress in advance of what you are doing.
But even if they did notify Congress in advance, if you had been
privy, let us say, to that Iran/Contra operation and let's assume for
the moment you had sanctioned it, it would still have been a very
serious thing for the United States to have had a public foreign
policy that ran one way and a secret foreign policy that ran the
other.
It may be you could draw a distinction between those two types
of covert or special intelligence activities. I certainly agree on any-
thing that involves a departure from the stated foreign policy of
the United States that has been disclosed to or approved by Con-
gress there ought to be advance consultation. I certainly go along
with that.
I do think though that any kind of sooner or later duty to notify
will be a powerful deterrent. It is very hard to be precise on what
the right number of days is. Whatever you pick, somebody can
think of something that would take longer for which there might
be a justification of secrecy, continuing secrecy. That is why I also
lean myself to the notion, although I did not put it in my letter to
Mr. O'Neil, that if you could require the President to notify each
time he initiated an activity, the details or substance of which he
had high policy reasons for not disclosing, if, at least, he said I
have started an intelligence activity, number one, let's say, at least
you would know that and every time the director came before you
and every time money was needed you could say, tell us about that
activity and he would have to give a reason why he did not and
ultimately he would have to do it.
Something like that might be a useful device.
Chairman McHUGH. Dr. Halperin, when he testified, suggested a
distinction on the tough case. A tough case, as you have said, is the
hostage rescue operation in which it may play out over a number
of days or even weeks, people's lives are at stake, and there is un-
derstandable concern about any disclosure of that information. He
suggested that in a situation like that Congress should be told that
as a matter of policy we are going to undertake a rescue operation
or a series of steps which we hope will lead to the rescue of our
hostages or whatever, but that the details of how that is done is
not something that the committees need to know: who is involved,
the timing precisely, and so on.
Is that a reasonable distinction to make and, if so, is it some-
thing we should consider in trying to refine it?
Mr. CUTLER. I do not think so for a rescue operation. If it had
become public that the United States was planning a rescue oper-
ation in 1980 in Iran, even though the time, the place, the method
were not specified, the Iranians would immediately have dispersed
those 53 hostages into 53 different places, as they did after our
aborted rescue mission, and mooted the whole idea.
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Chairman McHUGH. My time is up and we have a vote as well,
but inevitably it gets back in part at least to the question of who
can be trusted.
You have the tension here between the Congress' right to know
and it's right to advise, on the one hand, and the sensitivity of the
information on the other. Even in the case of the hostage oper-
ation, assuming the details are not disclosed, why shouldn't this
group of eight in the leadership be aware of the policy and have an
opportunity to give the President the benefit of their advice with
respect to this policy before it is undertaken? In the case of the
Iran hostage situation, Secretary of State Vance obviously had
strong objections to this to the point where he resigned afterward.
Perhaps if the Speaker of the House or Majority Leader of the
Senate had also expressed some strong reservations to President
Carter it might have been enough to give him second thoughts
about whether or not that policy, without giving the details of it,
was worthwhile.
Mr. CUTLER. The point is a valid point and I faced it in real life
terms. First the problem existed under this act with respect to the
activities that Admiral Turner wrote about, the preparations
within Teheran which his agents conducted that lasted quite a
period of time. Second it existed under the War Powers Resolution
on the duty to consult Congress before introducing armed forces
into the territory of another state where hostilities might be immi-
nent.
The hard fact was that while the President wanted to himself, no
matter how tightly you drew the circle of those you would consult
and the War Powers Resolution says consult Congress, which
leaves you entirely up in the air, that circle included people who
we believe, rightly or wrongly, do not keep secrets well. They are
people of the utmost good faith, utmost loyalty to the United
States, but what they hear at 12:00 they tell a staff assistant at a
quarter after 12 or at least so we believed, and that is the kind of
problem you face.
In a rescue mission it does seem to me when it is in and out like
that and while it may be debatable as a matter of policy, it is the
sort of decision you just have to leave to the President in the end.
There was no doubt that Mr. Vance was not going to go public or
confide in someone who might in turn go public and ruin the whole
operation, and the President just has to be trusted just as he is
with that nuclear button, to do that kind of thing and take the con-
sequences.
They cannot be that great. It is not like a secret foreign policy to
supply arms to the Ayatollah's government; and, in fact, when the
mission aborted and we went up and told Congress everything, of
course, there were no reproaches for failure to consult in advance.
The only reproaches were it is too bad it did not succeed.
Chairman McHUGH. Thank you very much.
We will take a brief recess and come right back. I hope you can
stay with us for a few more minutes.
[Recess.]
Chairman McHUGH. The committee will be in order. Mr. Stokes.
Mr. STOKES. Thank you, very much.
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147
At the outset, let me express my appreciation to both Mr. Cutler
and Mr. Miller, not only for their appearance here, but for the ex-
cellent testimony they have given on behalf of this legislation.
Let me say, Mr. Miller, I very much appreciate your suggestion
that the language here be modified to say as soon as possible, in
any case, not later than 48 hours. I thought that was an excellent
suggestion, and one which I certainly think would be a good modifi-
cation in this case.
Last week when the minority leader of the House testified on
this legislation, he referred to the 48 hour period as being a strait
jacket on the President in light of the fact that the gang of eight
may at any given time be in all different parts of the world. Of
course, I think the argument has some merit in the sense we know
that during the Easter recess, for instance, many of us take off to
places beyond Washington. But knowing the work of the Hill, as
you have so well articulated in your formal statement here for us,
do you see that as being a real problem in terms of let's say the
gan,g of eight?
Mr. MILLER. No, I don't think so. The experience that I have had
on the Hill indicates that the opposite is the case. Senator Mans-
field, when he was majority leader, did a number of things to deal
with the problem of sudden emergencies. He, as a legal matter,
never permitted the Congress to go out of session, it was always in
session. So that he could deal with matters pertaining to Vietnam
and what have you. There was always a Senator on duty. He had a
duty roster.
Further, with the advance in communications, secure telephones
and so on, the ability to get to a secure telephone to be notified of
really sensitive matters was something that was developed. For ex-
ample, Senator Inouye, when he was Chairman of the oversight
committee, arranged with the CIA and Defense Department that
he could get to secure facilities within minutes wherever he was.
He took his responsibility that seriously.
And so I think the issue of notification, of getting the word, is
not a big problem. There are instances-the wonderful story about
Lyndon Johnson, when he was President, he was to be part of a
nuclear attack exercise and they couldn't find him for a period of
hours. He was engaged in very private matters.
Those things are bound to happen, and the ability of human
beings to not be where they are supposed to be, or to foil air tight
systems, I am sure will always be the case, but it seems to me
there is a practical matter you can notify the leaders of the Con-
gress, you can set up procedures which would make notification a
relatively easy matter and the issue of a few hours seems to me a
quite normal expectation. If the country was under a nuclear
attack, it is going to be a different ball game.
Mr. STOKES. Mr. Cutler, let me ask you this in terms of Mr. Mil-
ler's statement regarding notice no later than 48 hours. Would this
provision stop the President from doing whatever he felt he had to
do within his constitutional powers? Having been an advisor to the
President of the United States and having the enormous responsi-
bility that goes with that, would you say that it is true in a prag-
matic sense that the President will always do what he has to do
notwithstanding such limitations?
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Mn CUTLER. Well, I think-the limitation would have a powerful
effect on Presidents. There are some things I think Presidents
clearly have a constitutional power to do that Congress cannot
change, such as acting as Commander in Chief of the Armed
Forces, and repelling an attack-let us say the nuclear button that
I referred to earlier.
But it is hard to say that even against an overriding congression-
al statute, the President has the constitutional power to mount a
rescue mission for Americans abroad. One could certainly argue,
absent a congressional provision that bars him from doing so, that
he had that power inherently as Commander in Chief.
But it does seem to me that none of us is bright enough to devise
an absolute 48 hour rule that will cover all situations and to drive
the President into the refuge of a constitutionally inherent right to
do something which Congress cannot interfere with, it seems to me
goes a bit too far.
I think the point of notice is not so much that it be beforehand,
so that there is consultation with the band of eight or two commit-
tees that might amount to 40 or 50 members and their staffs, it is
that nothing can be done and kept secret, so that you never know
that it happened, and whether you get the notice two days later or
a week later, or a month later, it seems to me, in most cases, isn't
going to make that much difference. And we can all conjure up sit-
uations in which 48 hours isn't enough.
Let me go back to Admiral Turner and the Iran rescue. One of
our problems there was that he had people in place in Teheran,
and when the mission aborted, we had to get everyone out. We had
to allow enough time before we announced that the mission had
aborted and we were taking people out, so that he could get his
people out. Suppose he couldn't get them out in 48 hours, and if
the President gave the notice in 48 hours, and it became publicly
known, the lives of those agents would be prejudiced.
There are all sorts of situations like that that could come up and
I think myself, you have got to allow a certain amount of initiative
to the President, although you require him to account to you after-
wards. We can only have one President at a time. I would submit
we can only have one person deciding at a time whether to do a
rescue mission or not.
Mr. S'roxFs. Even under those circumstances-we are talking
about the most exigent of circumstances?
Mr. CUTLER. Right.
Mr. SToxEs. Thank you very much, both of you. I appreciate it.
Chairman McHUGH. Mr. Hyde.
Mr. Hvnx. Thank you, Mr. Chairman.
Then, Mr. Cutler, you agree with former CIA Director Admiral
Stanfield Turner, you agree with former CIA Director William
Colby, you agree with former I guess Deputy Director of CIA, Ray
Kline, that you just can't measure timeliness by the clock. You
agree with-I think Admiral Turner put it best-he said that time-
liness is not measured by a clock, that timeliness is measured by
the risk.
I don't think we should focus on hours and days, I think we
should focus on the completion or the diminution of the risk. It
could be that is an operation as an operation goes along, the risk
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drops off to human life. When that risk to human life has dimin-
ished sufficiently, when it is timely to notify the Congress. So you
would generally agree with that?
Mr. CUTLER. I don't quite agree with that, Mr. Hyde. I am not
sure you do either. You agreed earlier that ten months or whatever
it was, in the Iran/Contra case was far too long, and that timely
fashion cannot be construed in that manner even though it is an
open ended date.
I would think that a bar date-it is hard for me to think of
cases-there may be some, in which after 30 days or 60 days, or 90
days, at least limited consultation with the gang of eight wouldn't
be appropriate.
I did make a suggestion while you were out about another way to
go at it that would be to require the President, when he makes a
finding, and authorizes an operation, the details of which he
doesn't feel he can properly share with the Congress, he at least
notifies them I have started operation number one, or 101-I can't
tell you now what it is-and then after time, the DCI comes up to
testify, you will be asking him what was that operation, and why
can't you tell us?
Sooner or later, as long as you know that something is happen-
ing, eventually you will find out and it is the fording out and re-
quiring him to account I think is more powerful than the consulta-
tion earlier.
Mr. HYDE. You mean you would have the President say I am
doing something but I won't tell you, can't tell you what it is?
Mr. CUTLER. Yes. What is wrong with that?
Mr. HYDE. Well, I am trying to think what is right with it.
Mr. CUTLER. What is right with it, what you cannot allow rather,
is that timely fashion can be construed to be forever.
Mr. HYDE. I will agree with you there. I think this Administra-
tion made a serious mistake, political mistake. I am reluctant to
say a legal mistake, because I think timely fashion is a word of art
that like beauty, it is in the eye of the beholder, and I will agree
that 14 months was much too long, but you know, it is tough to put
a time limit on it. It depends on the other country you are working
with. If they say no way do we want this disclosed to 50 people on
the Hill, or count us out, what do you do with that?
You have got a law that says within 30 days, within 60 days, you
must disclose. You put the President in a box.
Mr. CUTLER. What do you do with the operation that goes on,
let's sa an agent who is in place for five years--
Mr. HYDE. That is right.
Mr. CUTLER. You tell Co ess nothing about it. You open up the
possibility of forever, then that is the real problem, and in the Iran
case, Mr. Casey probably intended forever. He wasn't going to tell
us about that until he had to.
Mr. HYDE. Well, that may be and we may never know, and in
Mr. Casey's defense, however, I would probably outdo him in para-
noia if I had his responsibilities and the long litany of sensitive op-
erations that were disclosed time and tima ain in the media, and
we have had an incident very recently tilt les the mind, and
so. we have got a problem. America has a prob em. I hope we can
address it.
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Mr. Cum=. I have said I think Congress should do more to
tighten up its own procedures.
Mr. HYDE. You are absolutely right. Try that one out for size.
Would you agree with Professor Lewis Henken of Columbia Uni-
versity, who makes an interesting distinction. He says intelligence
gathering activities may not be subject to regulation by Congress.
Congress is probably entitled to ask to be informed of such activi-
ties as necessary and proper to the exercise of its various powers,
and those of the other branches of government of the United
States.
The right of Congress to be informed, however, ought not to be
exercised in ways that would interfere with the activity.
"The distinction between gathering information, et cetera, since
H.R. 1013 proposes to eliminate the reference to executive author-
ity, under the Constitution as well as existing subsection (b), you
may wish to consider either excluding intelligence gathering from
intelligence activities, under section 413, or writing additional re-
porting requirements in different terms."
I think what Professor Henken has pointed out is that the gath-
ering of information is a principal purpose of the President in send-
ing Ambassadors, maintaining diplomatic relations, and it is an ex-
clusive presidential power.
It is only a small extension to conclude that gathering of infor-
mation by any means is a part of the President's eyes and ears
function. There is, therefore, a strong case for presidential author-
ity to obtain intelligence not only through our embassies, but also
through other agents representing the Executive or through mili-
tary agencies under the Presidents command. Congress should not
interfere with that function.
Do those words resonate with you?
Mr. CUTLER. I have a great respect for Professor Henken. I think
a lot of what he is saying there is policy advice to the Congress
rather than a constitutional form of advice to the Congress. I do
think, as I have said, we can only have one President at a time. I
do think it is desirable to retain the provisions of the present Act
that reserves the constitutional powers of the President and of the
Congress.
H E. You wouldn't strike those out as this bill does?
Mr. CUTLER. No, and I have so written to the committee. But I do
think also that Congress does, through the power of the purse and
even beyond the power of the purse, Congress shares the foreign
policy making power and Congress certainly shares the defense and
securit power. And it is within the power of Congress-I think it
would be foolish to do so-to say we are not going to appropriate
any money for intelligence activities or that we are going to forbid
certain types of covert activity, such as, let us say, assassination.
All of those are within your power. You share the power to
defend and represent this country and conduct its foreign policy.
Mr. HYDE. Isn't intelligence gathering in the constitutional sense,
isn't that the President's preserve?
Mr. Ci msi . It is his preserve in the sense that when he receives
anambe"4or who 859 to' him ;I only.tell you this ifyoudo '1r-tell
y else. He can make that. commitment and .keep that conf
dencee.. I think that is right.
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Mr. HYDE. What if Canada--
Mr. CUTLER. If he has $20 billion appropriated by you to carry on
intelligence activities then you have the right to decide as a Con-
F ess what activities will be carried on and how much will be spent
r it, you have that power. Now, it is foolish to exercise it in the
way that frustrates the collection of intelligence or the keeping of
proper secrets. We all agree with that. But I think it is idle to spec-
ulate on whether the President has the right to do this or someone
else.
As a practical matter, we have to have a President and he has
got to make the decisions, and I have said before you got back here,
I think it is just as good in most cases and just as effective for you,
to hold him accountable after he does something, rather than insist
on consulting with him while he is doing it, provided he is not
making a new foreign policy, secret foreign policy, as may have
been the case in this episode.
Mr. HYDE. How do you deal with the cooperating country essen-
tial to this operation, and the operation is very important to our
national security, that sets down some ground rules. See they look
at our gang of eight and they are not as confident that someone is
going to go down to Florida and say something to so ebody and
their lives are at stake. And if you want us in and th ,n you just
don't tell anybody until it is over, how do you deal with' that? You
wouldn't deal with them?
Mr. CUTLER. The President in those circumstances, ifyou bind
him up in a gang of eight requirement, he has either got say no,
I am sorry, I can't take a part with you or you had better not give
me that information, or he has got to decide whether to olate a
statute.
Mr. HYDE. Is that wise thinking to put the President in that box?
Mr. CUTLER. I agree, it is maybe foolish to put him into a box. I
think you have the power to do it if you wish to do it. I agree with
you it is foolish to put him into too tight a box.
On the other hand, he has got to conduct himself vis-a-vis Con-
gress so that he and his agents are trusted and I think that trust
was breached in this case.
Mr. HYDE. Well, lastly, you have been very generous, Mr. Chair-
man, I think there has been a mutual breach of trust, one that is
very easily identifiable with the Administration and culpability
too. They did not, obviously Mr. Casey did not trust the intelligence
committees.
Mr. CUTLER. I am speaking of the Goldwater-Casey agreement.
Mr. Casey, a grown man, made an agreement with Senator Gold-
water and he violated it, in my view.
Mr. HYDE. Well, at the President's direction.
Mr. CUTLER. I don't care whose direction it is. It just makes the
President that much more responsible. One of them should have
res ed.
Mr. HYDE. All right, well, I will agree with that, that was an
order he could not really obey and maintain-keep his word with
Senator Goldwater-and the Vice Chairman there.
Mr. CUTLER. An honorable man has to resign.
Mr. HYDE. Well, that is not quite fair. Because ones honor may
also require protecting operations and people whose lives are at
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stake and the future security of this country, and it is not quite
that simple. I think it is a little unfair, with Mr. Casey disabled, to
make such sharp and unredeemable accusations.
But be that as it may, I am certainly not comfortable nor happy
with that situation, and that role that was played. I think it was a
mistake, I think they are pa ymig a price, but I think the other side
of the equation needs every bit as much attention, and it is getting
zero, and that is the justifiable lack of confidence in our whole
process, in keeping a secret. And we have got to do something
about that, too.
Mr. CULTER. I agree with you on that side of it, Mr. Hyde. I think
it is very difficult when the President has 1,700 White House aides
and when you have 20,000 aides up here in Congress, and we have
the vast press that we have, it is very, very difficult. But I certain-
ly agree with you, Congress could do more to carry out its responsi-
bilities to preserve the secrets that need to be preserved.
And I have long been a personal friend of Mr. Casey's and I cer-
tainly wish him very well. I don't see, however, how one can read
Senator Moynihan's testimony about the Goldwater-Casey agree-
ment and not feel that there was a breach of trust.
Mr. HYDE. On the agreement?
Mr. CUTLER. I regret to have to say that.
Mr. HYDE. On the agreement, there is sharp differences of opin-
ion on notification of the intelligence committees on the mining of
the harbors there, and I am saving my extended questioning on
that, for one, when the dear Senator comes over. But I agree, they
made an agreement and it should have been lived up to.
Mr. CUTLER. Or they should have withdrawn from it.
Chairman McHUGH. Thank you, Mr. Hyde.
You made mention of the letter from Professor Louis Henken. I
think, without objection, we should include that in the record.
I know Mr. Cutler, you, and I suspect Mr. Miller, would like to
be dismissed. I just want to be sure that I understand the thrust of
your position. If I understand what you have told us correctly, it is
that in virtually all cases, particularly where it involves the estab-
lishment of policy for the United States Government, the intelli-
gence committees, in the case of covert operations should be noti-
fied in advance of those operations.
However, in cases such as hostage rescue cases, which do not in-
volve the establishment of a new policy, and which do involve the
risk of life, the President should have somewhat more flexibility
than 48 hours in certain instances, to notify the Congress. Is that
correct?
Mr. CuTLEa. I would say also the same as to the gathering of in-
telligence and the handling of agents, but I think the existing law
already has an exception for that.
chairman McHuGH. Finally, I should note, because the question
oft t in Congress keeps coming up-Mr. Hyde, understandably,
points out certain instances where he believes leaks have occurred
and we all recognize there is a problem here in terms of leaks. But
I must say for the record, that since I have been on this committee,
every time that we have asked an executive official, including high
officials in the CIA, where the major problem exists with respect to
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leaks, they have responded that the problem is in the Executive
Branch of government, not in the Congress.
So for that reason and others, it seems to me unreasonable to
suggest that Congress should be excluded from the policy making
process and from notice of covert operations, which are important
to our country, on the grounds that Congress may leak, and I don't
think you have suggested that, but I do think some people do, and I
don't understand it or agree with it. I feel it is important.
Mr. CUTLER. I am sure the honors are at least even. I did refer to
the 1700 members of the White House staff. You may remember
when Mr. Meese was testifying in that famous press conference,
the question was, did the President know about the transfer of the
money to the Contras?
His answer was no, the President cannot be expected to know
what all 1700 members of the White House staff are doing and, of
course, you could add a few more zeros for the additional size of
the intelligence community, including the agency, the NSA, the
Defense Department, the State Department, and others.
Chairman McHUGH. In that context, it is awful hard, for me at
least, to accept the proposition that the Speaker of the House and
seven other top leaders in the Congress cannot be trusted with this
sensitive information.
Thank you both very much. We appreciate it.
Our next and last witness for today is the author of the other bill
that the subcommittee is considering, Congressman Norman
Mineta, of California, who has previously served with distinction
on this Intelligence Committee. He served here for six years and
has continued his interest in a strong intelligence community and
in a strong process of oversight.
We are delighted to have you with us, Norm.
STATEMENT OF HON. NORMAN MINETA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. MINETA. Thank you, Mr. Chairman.
I apologize for having missed the opportunity to be here earlier
in the day when I was originally scheduled to testify. As one who
sat on the Permanent Select Committee on Intelligence for six
years, I am delighted to have this opportunity to appear before this
subcommittee.
There are two bills before you today, Mr. Chairman. Both bills
are similar in that they seek to cure the defect in current law that
allows the Administration to avoid the appropriate and necessary
congressional oversight of covert actions.
H.R. 1013, introduced by Mr. Stokes and Mr. Boland, requires
written notice of all covert activities prior to their start, with an
exception that allows notice up to 48 hours after the start of an
action.
My bill, H.R. 1371, is similar, except it requires written notice
prior to the initiation of all covert activities. H.R. 1371, does give
the Administration the power to limit this notice to the so-called
gang of eight-the leadership of both Houses and both Intelligence
Committees.
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I support these bills because I believe in the principle of congres-
sional oversight. And I say this not just because I am protective of
Congress' prerogatives-which I am-but also because I believe
that such oversight makes our intelligence efforts stronger.
As the members of this committee know all too well, on more
than one occasion the private but careful scrutiny of congressional
oversight has saved the intelligence community from mistakes and
indeed disasters. And is there anyone of us who doubts that had
this committee had the opportunity to review the Iran arms deals,
that the nation would have been spared this whole sad affair?
Some may say that current law has failed only once in several
years-why change it? I say if a simple change would have spared
us the Iran disaster, we must make the change, or else, what fiasco
may be next?
Mr. Chairman, this proposed change was first approved by this
committee in 1980. Many of us, such as myself, have fought for
more thorough oversight for many years now. This bill is more
than timely, it is long overdue.
I cannot speak for those who are opposed to these bills, but I sug-
gest that at the heart of their opposition is a mistrust, a doubt,
about the usefulness, reliability and appropriateness of congres-
sional oversight.
Mr. Chairman, I have no such doubts. And I submit that once
you fully accept the principle of thorough congressional oversight,
these bills become obvious necessities.
Of course, there are those who say in effect that Congress and
this committee cannot be trusted. As a former military intelligence
officer myself, I do not share that view. Indeed, my six years on
this committee convinced me that the single biggest sieve in this
town is not the Congress, but the Administration.
More than once when I sat on this committee we sought docu-
ments that the Administration said were too sensitive for us to see,
and then I saw those same documents in the media when it suited
the Administration's purpose.
Under H.R. 1371, for example, notice of very sensitive covert ac-
tions could be limited to Speaker Wright, Minority Leader Michel,
Chairman Stokes, Mr. Hyde, and Senators Byrd, Dole, Boren and
Cohen. Just these eight distinguished leaders. The question is: can
these eight people and their successors be trusted with national se-
curity matters?
If these officials cannot be trusted-and we have not heard any
evidence that they cannot be trusted-then who can?
I have no doubt that these people, and the members and staff of
both intelligence committees, are worthy of our trust. I trust them
not only to keep our secrets, but to play a useful and contributory
role in our intelligence operations.
But no oversight can continue without timely and complete infor-
mation. Without such information, the committees are charged
with a vital task, but will be denied the tools to carry it out.
Mr. Chairman, oversight is necessary. And information is neces-
sary to carry out that function. These bills are necessary to get
that information.
Thank you.
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Chairman McHUGH. Thank you very much, Norm. I appreciate
once again your being with us and your contribution.
I was not on the committee in 1980 as you were, but as you
recall, the Intelligence Committee of the House, and indeed the
entire House, adopted a bill which would have required prior
notice of all covert operations just as your proposal before us does.
However, in conference with the Senate, the House accepted the
Senate's position which is reflected in current law, which, as you
know, permits in some cases prior notice to be withheld and notice
then to be given within a timely fashion.
Do you recall why the House acceded to the Senate position in
1980, and gave up the proposal which you are now advocating that
the committees be given prior notice in all cases or that prior
notice be given in limited cases to the leadership group of eight?
Mr. MINETA. I think it was probably out of practical consider-
ations, Mr. Chairman, in that we wanted to get the bill passed.
What we bought in 1980, was an improvement over then current
law, and I think these bills will even improve the situation now. In
accepting the Senate language in 1980, what we did was to rely on
their assertion that prior notice could be dispensed with only in
emergencies, but obviously this has not been the case. But I think
the basic answer is to get the bill passed in 1980.
Chairman McHUGH. As I am sure you know, the argument is
being made that the proposals, your proposal certainly, and Mr.
Stokes' proposal, would unduly tie the hands of the President, par-
ticularly in cases where lives were at stake and where time was
important. The obvious example that has been cited time and
again, is the hostage rescue situation, such as the Iran hostage
rescue attempt in the Carter Administration.
In your proposal, prior notice even in that situation would have
to be given. How do you respond to those who argue that this is too
inflexible and too risky in terms of lives at stake and in terms of
the President's need for some discretion?
Mr. MINETA. Well, I think both in terms of lives at stake and
timeliness, I think that even in those instances, there are present
day circumstances where I think notification has been made to
both of the Intelligence Committees without risk to those people
who are in place doing intelligence work.
So I think we have already experienced situations where lives
are at stake but information is given, and still not disclosed. I
think that to require timely notification is not a hinderence. This is
I think an anecdotal argument that is brought up, but I think in
terms of what we have experienced, it has not been a problem. I
know this is an argument that is brought up in terms of lives are
at stake, but there are lives at stake everyday and there haven't
been problems where that information has been given.
Chairman McHUGH. Thank you.
Mr. Hyde. Thank you, Mr. Chairman.
Thank you, Congressman Mineta for an excellent statement. You
are one of the students of intelligence and the intelligence process,
because of your service on the committee and your prior services in
the military, so what you say is important and has value.
I am not quite as confident, however. You mentioned the gang of
eight and you even were kind enough to refer to it as distin-
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guished. That applies to most of them, myself excluded, but I have
in my hand a headline from the Jerusalem Post of Friday, March
-
20, 1987, disclosing a speech made to a private group down in Flori
da by the former Chairman of the Senate Intelligence Committee,
revealing information that, at least in my judgment, is not helpful
to our national interest. And without commenting too much on
that-I understand it is under investigation in the other body-
that doesn't add to the quotient of confidence that one has, if even
the gang of eight is not beyond making mistakes and disclosures.
But basically, I agree that if we are to have an oversight func-
tion, and we must have an oversight function in a democracy, we
can't exercise that if we don't know what questions to ask or what
operations to look at. And what we need is a formula that will im-
press on the Administration the responsibility of communicating to
this committee and our counterpart in the Senate, those matters
which are properly for our oversight.
We are trying to find that formula. You have come up with one
that requires prior notice and this bill of Mr. Stokes, our chairman,
and Mr. Boland, is 48 hours anyway.
You then don't agree I guess with Admiral Turner, who objected
to prior notice in his book "Secrecy in Democracy," discussing his
tour as Director of the Central Intelligence Agency.
He said, "inadvertent informing of Congress through reporting
on covert action is not the way to accomplish such a purpose. Ac-
cordingly, I strongly oppose the move by the Senate Committee on
Intelligence to insert into the Intelligence Oversight Act of 1980 a
requirement for prior notification of all covert actions.
`Another reason I opposed prior notification was that I felt it un-
reasonable to ask a person to risk his life and then tell him I was
going to notify some 30 congressmen and their staffs about what he
was going to do."
Then description down here: "If Congress someday does legislate
prior notification, the CIA may cease some useful covert activity
for fear of premature disclosure and may back away from risky
covert actions altogether, to avoid the danger of arousing the Con-
gress again. In either case, the country loses."
That is not Mr. Casey talking, that is Stanfield Turner, and I
take it you disagree with those sentiments?
Mr. MiNrrA. Yes sir, I do, and remember this is not that we ap-
prove the operation, it is simply prior notice. We have no approval
or ability to turn down that Presidential finding.
Mr. HYDE. It might very well abort it, we understand that. I
mean, if you don't like a policy, if it suddenly appears in the press
that may well abort the entire operation, and you have accom-
plished your purpose. I am hypothetizing, not you, of course, the
American who has leaked it. 3o the damage is done at least from
the
Mr. MiNETA. Frankly, I have no compunctions about the criminal
prosecution of anybody who might do that.
Mr. HYDE. That is a very splendid statement and a good idea, I
think. I hope we address ourselves to that.
Mr. MiNETA. I have been in that position myself and if anyone
ever cuts the rug from under me by disclosing information that is
going to be putting lives at risk, f have no compunctions at all
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about seeking prosecution in that kind of a circumstance. I don't
care who it is.
Chairman McHUGH. Mr. Stokes.
Mr. STOKES. Thank you, Mr. Chairman.
Mr. Chairman, at the outset, let me commend our colleague, Mr.
Mineta, for an excellent statement here this morning on behalf of
the Mineta bill, and on this whole subject with which we are grap-
pling, and it is a pleasure to have him here.
Let me just start out with this. You would think that this legisla-
tion had something to do with leaks from the kind of discussion
that we have heard here this morning. This bill is not directed
toward leaks. This legislation is directed toward having the Presi-
dent of the United States comply with the law that requires the
United States Congress to share in the tremendous responsibility
that he has with reference to covert action. Recognizing that we
are a nation of laws and not of men, we have offered legislation
that requires the President to share this onerous responsibility
with the Congress.
But since we have had all this discussion about leaks, and since
you have been a member of the Intelligence Committee in the
House for a six year period, having during that period of time been
privy to our own analysis in terms of whether the Congress is
guilty of major leaks or whether the Executive Branch of govern-
ment does more leaking, would you comment for us from your own
observation as to who does most of the leaking in Washington?
Mr. MINETA. Well, I think, as Mr. Hyde has pointed out, when it
is to their convenience and advantage I have found the Executive
Branch will leak. We have had this happen to us here on the Intel-
ligence Committee. We were seeking a document-and I believe it
was 1983-we were trying to get a national security decision docu-
ment from the White House. We couldn't get it and the whole
thing appears in the paper one day.
The problem was that frankly, we were, I think, as members of
the Intelligence Committee, hung out to dry by the Executive
Branch because Members of Congress, our colleagues, would then
see that document in the paper, and then say to us what in the
devil is going on, what are you folks up there doing? And here we
were left dangling in the breeze because we are supposedly to do
oversight, here we were seeking a document, couldn t get it, and
then it appears in the printed media.
And I know I was hit by a number of our colleagues at that time,
wondering what is going on, how is it this was allowed to go on.
Questions were raised, and I was really upset that that had hap-
pened to us. As I said, we were left hanging in the wind. But I have
seen more disclosures and leaks by the Executive Branch than the
Legislative Branch.
The other problem I see is this: I think what we are trying to do
is to make sure that the information is coming to the committees
that have oversight. I am not sure what the total number of staff
now is on the Intelligence Committees, but let's say even if it is a
total of six or eight professionals, how do we make sure that those
eight professional staff people are in a position to gather the infor-
mation we need, versus all of the employees of the intelligence
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agencies that we have? They can hide in every nook and cranny
anything they want.
And we have got to be' detectives, and in how many instances
have we had here the experience of playing a cat and mouse game
with the intelligence agencies because they were not forthcoming?
There were times when I remember Mr. Mazzoli would have to ask,
"am I going to have to ask the right question to get an honest
answer. "
Oh no, no, we will be forthcoming, candid, et cetera was the
reply.
And yet we never get the right answer or get any answer. It is a
constant cat and mouse game that we were playing up here.
I just feel that while we expect our professional staff people to do
proper oversight, it is a near impossible task, given the number of
employees in the Executive Branch.
Mr. STOKES. Let me ask yo : this. The basic difference I see be-
tween your legislation and the Stokes-Boland bill is in terms of
prior notice. Yours does not make any allowance for any exigent
circumstances.
.Under our bill, we provide the 48 hour period. Can you conceive
of any circumstances under which we might need to provide that
type of latitude in terms of notification?
Mr. MINETA. Perhaps those involving joint actions with foreign
governments. I believe there was one such example, for instance,
that we experienced at the time of the takeover of our embassy in
Teheran. The Canadian Embassy had a number of our employees
and they were able to whisk them out and in that instance, the Ca-
nadians did ask President Carter that the Presidential finding not
be submitted to Congress, and it was withheld by the President
until those folks were on the airplane on the way to Germany, as I
recall.
So I do think that where you have dealings with a foreign gov-
ernment an exception to that may be in order. But it seems to me
that totally within our own jurisdiction, it seems to me we ought
not to have any exceptions.
Mr. STOKES. Thank you.
Mr. MINETA. I think that what is more important, however, is
not so much the difference between the bill as submitted by the
distinguished chairman of the Intelligence Committee and my bill,
but I think the more important distinction is between these kinds
of changes and present law. I think that is what we ought to be
focusing on.
Mr. STOKES. I agree wholeheartedly with the gentleman.
Thank you, Mr. Chairman.
Chairman McHUGH. Thank you very much, Congressman
Mineta, for your testimony this afternoon.
I would like to state for the record that back in 1980, the Intelli-
gence Committee of the House reported a bill which included prior
notice of all covert operations. That was never acted upon by the
House, so I misspoke in that respect.
Again, Congressman Mineta, thank you very much.
I should mention also that the Administration has been asked to
testify on both occasions that we have held hearings. Unfortunate-
ly, it has not been convenient for the Administration to do so. We
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will, therefore, be holding at least one more hearing to afford that
opportunity to the Administration.
It is quite possible we will also have additional witnesses. If the
minority has any suggestions in that respect, we would be delight-
ed to hear from you.
Mr. HYDE. We might want to ask some of the witnesses that have
already testified to testify again.
I am kidding.
Chairman McHUGH. Thank you.
We will think about that one.
Thank you all very much.
The hearing is now adjourned.
[Whereupon, at 1:00 p.m., the subcommittee was adjourned, sub-
ject to the call of the Chair.]
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H.R. 1013, H.R. 1371, AND OTHER PROPOSALS
WHICH ADDRESS THE ISSUE OF AFFORDING
PRIOR NOTICE OF COVERT ACTIONS TO THE
CONGRESS
WEDNESDAY, JUNE 10, 1987
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON LEGISLATION,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
Washington, DC.
The subcommittee met, pursuant to call, at 9:35 a.m., in Room
2237, Rayburn House Office Building, Hon. Matthew F. McHugh
(chairman of the subcommittee) presiding.
Present: Representatives McHugh, Stokes, Kastenmeier, Living-
ston, Shuster and Lungren.
Also Present: Representatives Beilenson, Daniel, Hyde, and
McEwen.
Staff: Michael J. O'Neil, Chief Counsel; Bernard Raimo, Jr.,
Counsel; Stephen D. Nelson, Counsel; Calvin R. Humphrey, Coun-
sel; Diane S. Dornan, Professional Staff Member; Jeanne M.
McNally, Clerk; Sharon Curcio, Assistant Clerk; Delores E. Jack-
son, Secretary; and Dana Gerard, Secretary
Chairman McHUGH. The subcommittee will please come to order.
Today the subcommittee concludes its hearings on legislative pro-
posals designed to improve congressional oversight of covert ac-
tions. More particularly, the proposals before us would amend cur-
rent law to make more specific the requirements governing notice
to Congress when the President authorizes a covert action.
To briefly restate the law, the statutes now provide that, as a
general rule, the President must notify the House and Senate Intel-
ligence Committees prior to undertaking a covert operation that he
has authorized. However, the law recognizes two limited exceptions
to this general rule. If the President determines that there are ex-
traordinary circumstances affecting vital interests of the United
States, he may limit prior notice to a leadership group of eight
Members of the House and Senate-the so-called "Gang of Eight".
The law recognizes, as a second exception, that in certain unde-
fined cases the President may choose not to provide prior notice to
anyone in Congress, but in such cases the President must provide
the Intelligence Committees with notice of the covert action in a
"timely fashion", together with a statement explaining why prior
notice was not given.
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Many of us in Congress believe that the President disregarded
the spirit, if not the letter, of the law when he authorized the
covert sale of military weapons to Iran. In that case, the President
conducted a covert operation for at least 10 months without notify-
ing anyone in Congress. fie not only failed to provide prior notice
of this operation; he provided no notice whatsoever. We learned of
the operation many months after it was begun only because it was
disclosed in a foreign publication.
In this case, the President apparently decided that circumstances
justified his dispensing with prior notice. He must have further de-
termined that not providing notice for at least 10 months after the
operation began did not violate his legal obligation to provide
timely notice after the fact. In my judgment, that was a wholly un-
reasonable interpretation of the law. However, presumably the
President would argue that he was not violating the timeliness re-
quirement.
These two views of what constitutes timely notice are quite di-
vergent. If Congress accepts the President's view, Congress can be
totally deprived of information regarding major policy for a sub-
stantial period of time. For those of us who care about Congress'
constitutional responsibilities, this is simply not acceptable.
The two bills before the subcommittee address this problem and
seek to make more precise the rules governing notice to Congress.
H.R. 1371, introduced by Mr. Mineta of California, would require
prior notice of all covert operations without exception. H.R. 1013,
introduced by Mr. Stokes of Ohio and others, would require prior
notice in almost all cases, but would give the President discretion
to defer notice of the operation until after its inception, only where
time is of the essence and there are extraordinary circumstances
affecting the vital interests of the United States. However, in such
cases, the legislation would require the President to notify the In-
telligence Committees within 48 hours after the covert operation
began. Both bills would retain the President's right to limit prior
notice to the leadership group of eight if there are extraordinary
circumstances affecting the vital interests of the United States.
A major point of contention in prior hearings has been the provi-
sion in H.R. 1013 which, in those cases where the exigencies of
time do not permit the President to give prior notice, would define
timely notice as 48 hours after the covert operation has begun.
Some witnesses have argued that a President needs more discre-
tion. If a President exercises discretion reasonably, a vague term
like "timely notice" can serve quite adequately. But when a Presi-
dent deliberately uses such a broad guideline to completely shut
Congress out of the licymaking and oversight process, it is a seri-
ous matter for the Congress and the country.
That is what happened in the case of the IRAN arms sales and,
unfortunately, it is not an isolated incident. Congress passed the
Boland amendment with the very clear purpose of prohibiting our
Government from extending military aid to the Nicaraguan con-
tras, directly or indirectly. In recent weeks, the President has
argued that the Boland amendment was ambiguous; that while it
may have prohibited some agencies of Government from providing
aid, it did not apply to the President or to the National Security
Council. Such an argument, employed to rationalize a pattern of
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conduct designed to get around the clear intent of Congress, does
not inspire confidence-at least with some of us in Congress. If
Congress is serious about its proper role under the Constitution, it
cannot be inert in the face of such misinterpretations of law. It has
no choice but to define, as expressly as possible, what is intended.
I have no doubt that the administration witnesses who testify
this morning will disagree with this, but it is in that context in
which the two bills before us have been introduced.
I would like at this time to, recognize the distinguished Chairman
of the Intelligence Committee, who as I mentioned is a prime
author of one of the bills before us, and who has been a leader in
getting this subcommittee to focus on this critically important
issue. Mr. Stokes.
Mr. S'roKEs. Thank you very much, Mr. Chairman.
Mr. Chairman, these hearings, as well as the Iran-contra hear-
ings, have reinforced my views as to the wisdom and necessity of
introducing and passing H.R. 1013. When Eddie Boland and I intro-
duced H.R. 1013 on February 4, I stated: "When the executive
branch treats congressional oversight as an irritant to be avoided
or overcome, the result is quite often a policy or program failure.
Occasionally, such failures are of such magnitude as to directly
affect the national interest.
"Clearly, this has been the case with regard to the so-called Iran
initiative. The intent to evade congressional oversight is clear; the
disastrous result is equally clear. It has come in the one area of
secret governmental activity-covert action-where effective con-
gressional oversight is imperative and where congressional access
to information must be unfettered. If the Intelligence Committees
are not informed of covert actions, then no one in Congress is in-
formed and no oversight is performed. If the Intellience Commit-
tees are not permitted to offer sound advice and constructive criti-
cism before an action is initiated, then rarely will any such advice
or criticism be heard from anyone who does not have a direct oper-
ational or policy connection to the particular covert action contem-
plated."
At that time I also noted: "That bond of mutual respect and
trust between the Intelligence Committees and the CIA, which
Eddie Boland, Ken Robinson, Senator Inouye, Senator Bayh, Sena-
tor Goldwater and others strove so hard and so successfully to es-
tablish, has been broken. It has been replaced of late by a demon-
stration of arrogance that permits high-ranking Government offi-
cials to look for ways to avoid the law rather than to execute it,
and to reason that a statute designed to ensure prior notice author-
ized no notice at all for ten months."
Since I made those statements in February, the Congress has
heard testimony from a former National Security Advisor and an
Assistant Secretary of State, admitting that they deliberately
misled or misinformed congressional committees, including this
one.
A CIA official has asserted, in effect, that his superiors did not
tell the truth when testifying before congressional committees, in-
cluding this one.
We have learned- that the. DEA was:-directly::.invoIved- in a..covert