LETTER TO JAMES M. FREY FROM (SANITIZED)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100010039-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 23, 2016
• Document Release Date: October 21, 2013
• Sequence Number: 39
• Publication Date: June 3, 1987
• Content Type: LETTER

?Central ladlignce Agency
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WashintlomDC20505
OCA 87-2308
3 June 1987
Mr. James M. Frey
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Frey:
Enclosed is a copy of the Agency's draft testimony on H.R.
1013, relating to congressional oversight of the intelligence
activities of the United States, to be presented before the
House Permanent Select Committee on Intelligence on 4 June 1987.
Your advice is requested as to whether there is any objection
to the submission of this testimony from the standpoint of the
President's program.
Enclosure
Distribution:
Orig. - Addressee (w/enc)
1 - OCA Record "
1 - D/OCA I f
1 - AGC/DDO
1 - DD/HA/OCA
Chrono "
OCA/LEG Subi File: Congressional Oversight
DD 'G/OCA: (3 Jun 87)
incerel
Deputy Director for Legislation
Office of Congressional Affairs
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STAT
STAT
STAT
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STATEMENT OF JAMES B. TAYLOR
EXECUTIVE DIRECTOR
CENTRAL INTELLIGENCE AGENCY
THANK YOU MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE. LET ME BEGIN BY
STATING FOR THE RECORD THAT THE CENTRAL INTELLIGENCE AGENCY JOINS THE
DEPARTMENT OF STATE IN OPPOSING H.R. 1013. WE SHARE THE DEPARTMENT'S VIEW
THAT THE PROPOSED LEGISLATION NOT ONLY WOULD INTRUDE ON THE PRESIDENT'S
AUTHORITY IN FOREIGN AFFAIRS BUT ALSO WOULD DENY HIM THE NECESSARY
FLEXIBILITY TO MEET INCREASINGLY SOPHISTICATED THREATS TO OUR NATIONAL
SECURITY AND THAT OF OUR FRIENDS AND ALLIES./ WE BELIEVE THAT THE SYSTEM NOW
IN PLACE ACCEPTABLY RECONCILES THE EXECUTIVE BRANCH'S REQUIREMENT FOR
FLEXIBILITY WITH CONGRESSIONAL REQUIREMENTS FOR OVERSIGHT. WE THEREFORE
BELIEVE THAT ADDITIONAL LEGISLATIVE REMEDIES ARE UNNECESSARY.
LET ME FIRST BRIEFLY DESCRIBE THE CURRENT SYSTEM. I SHOULD LIKE TO
CLARIFY FOR THE RECORD THE COMPREHENSIVENESS OF THE CIA'S EFFORTS TO
FACILITATE MEANINGFUL OVERSIGHT BY THIS COMMITTEE, AND ITS COUNTERPART IN
THE SENATE, OF THE NATION'S COVERT ACTION PROGRAMS. THE IRAN ARMS TRANSFERS
STAND AS AN EXCEPTION TO THIS ADMINISTRATION'S PRACTICE. WHATEVER THE
COMMITTEE'S CONCERNS ABOUT THAT EXCEPTION, THE COMMITTEE SHOULD NOT LOSE
SIGHT OF THE BASIC PRACTICE.
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IN HIS MARCH 31ST MESSAGE TO CONGRESS, THE PRESIDENT SAID HE aWELCOME(S)
THE CONGRESS'S OVERSIGHT ROLE (IN THE INTELLIGENCE FIELD) AS IT HAS
DEVELOPED IN THE LAST DECADE." THE RECORD OF THE PAST SIX YEARS -- AND OF
THE NOTIFICATIONS, REPORTS, BRIEFINGS, AND TESTIMONY ON COVERT ACTION
PROVIDED BY THE CIA FOR THE BENEFIT OF THE HOUSE PERMANENT SELECT COMMITTEE
ON INTELLIGENCE AND THE SENATE SELECT COMMITTEE ON INTELLIGENCE -- IS
EVIDENCE OF THE PRESIDENT'S COMMITMENT TO MAKE THE CONGRESSIONAL OVERSIGHT
PROCESS WORK." BY ITS VERY NATURE, THAT RECORD CANNOT -- IN ANY DETAILED
WAY -- BE MADE PUBLIC. WE CAN, OF COURSE, PROVIDE A CLASSIFIED ANNEX TO
THIS TESTIMONY DETAILING OUR PERFORMANCE IN THIS AREA. WITHOUT DENIGRATING
THE IMPORTANT LESSONS OF THE IRAN/CONTRA AFFAIR FOR ALL PRESIDENTS, THE
CHRONOLOGY OF THE ADMINISTRATION'S CONSULTATIONS WITH CONGRESS POINT UP THE
ABUNDANT SUCCESSES OF THE CURRENT STATUTORY SCHEME. IT ALSO DEMONSTRATES
THE CARE, AS THE TOWER BOARD FOUND, WITH WHICH EXECUTIVE BRANCH PROCEDURES
HAVE BEEN DRAWN TO ENSURE THAT RESPONSIBLE COMMITTEES OF CONGRESS ARE KEPT
"FULLY AND CURRENTLY INFORMED" OF COVERT ACTION PROGRAMS.
THERE APPEARS TO EXIST A WIDESPREAD MISPERCEPTION OF THOSE PROCEDURES.
I SHOULD LIKE TO SET THE RECORD STRAIGHT. AT THE INITIATION OF A COVERT
ACTION, THE CIA ROUTINELY PROVIDES THIS COMMITTEE AND THE SENATE SELECT
COMMITTEE ON INTELLIGENCE WITH THE FULL TEXT OF THE PRESIDENTIAL FINDING
THAT THE CONTEMPLATED ACTION IS IMPORTANT TO THE NATIONAL SECURITY. THE CIA
ALSO PROVIDES ACCOMPANYING PAPERS SETTING FORTH THE SCOPE OF A PROPOSED
OPERATION AND OTHER BACKGROUND INFORMATION. ONCE A PROGRAM IS INITIATED,
THE CIA PROVIDES PERIODIC BRIEFINGS ON THE CONDUCT AND EFFECTIVENESS OF THE
2
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COVERT PROGRAM IN QUESTION. THE CONGRESSIONAL INTELLIGENCE COMMITTEES ARE
INFORMED WHEN AND IF EVENTS DICTATE SIGNIFICANT CHANGES IN PROGRAMS AS WELL
AS OF SUCCESS AND FAILURE. THEY THUS ARE INFORMED BOTH AT THE INCEPTION AND
THEN PERIODICALLY DURING THE LIFE OF A PROGRAM UNTIL THE PRESIDENT CANCELS A
FINDING.
IN FACT, MY EXPERIENCE IN THIS AREA LEADS ME TO CONCLUDE THERE IS A FAIR
CONSENSUS BETWEEN THIS COMMITTEE AND THE CIA OVER HOW THE OVERSIGHT
RESPONSIBILITIES CAN BE ACCOMMODATED WHILE CONTINUING TO ENABLE CIA TO
PROTECT THE MOST SENSITIVE ASPECTS OF OPERATIONS. A CHRONOLOGY OF
CONGRESSIONAL NOTIFICATIONS AND BRIEFINGS WOULD SHOW THE EXTENT OF OUR
CONSULTATION EFFORTS. WHAT IT WOULD NOT SHOW IS THAT THE CIA PROVIDES
CONGRESS EVEN MORE INFORMATION ABOUT THE DETAILS OF COVERT ACTIONS -- MORE
SPECIFICITY ABOUT THEM -- THAN MOST PEOPLE WHO ARE ACTUALLY ENGAGED IN THE
OPERATIONS THEMSELVES.
H.R. 1013 WOULD ATTEMPT TO FORMALIZE THE CONGRESSIONAL NOTIFICATION
PROCESS BY REQUIRING THAT: 1) PRESIDENTIAL FINDINGS BE IN WRITING; 2)
COPIES OF ALL FINDINGS BE PROVIDED TO THE HPSCI, SSCI, VICE-PRESIDENT,
SECRETARY OF DEFENSE, SECRETARY OF STATE, AND THE DCI; AND 3) DEFERRAL OF
NOTICE OF SIGNIFICANT INTELLIGENCE ACTIVITIES (COVERT ACTIONS) BE LIMITED TO
48 HOURS AFTER A FINDING IS SIGNED. LET ME ADDRESS EACH POINT SEPARATELY.
FIRST, CIA AGREES THAT AS A MATTER OF POLICY, PRESIDENTIAL FINDINGS
SHOULD BE REDUCED TO WRITING. AS A PRACTICAL MATTER, THEY ARE.
3
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NONETHELESS, WE JOIN THE ADMINISTRATION IN OPPOSING A PROVISION THAT
COULD PREVENT THE PRESIDENT FROM TAKING IMPORTANT IMMEDIATE ACTION IN A
DIFFICULT SITUATION UNLESS AND UNTIL HIS DECISION WAS IN WRITING.
NEXT, WITH RESPECT TO DISSEMINATION OF COPIES OF FINDINGS, THE CURRENT
PRACTICE IS TO PROVIDE THE DEPARTMENTS OF STATE AND DEFENSE, AND THE HOUSE
AND SENATE SELECT COMMITTEES, WITH THE FULL TEXT OF THE FINDING, ALBEIT NOT
THE ACTUAL SIGNED COPY.
H.R. 1013 WOULD REQUIRE THAT THE PRESIDENT MAKE THE SIGNED COPY
AVAILABLE. IT IS NOT APPARENT TO US WHAT ADDITIONAL BENEFITS WOULD BE
GAINED BY REQUIRING THE DISSEMINATION OF SIGNED COPIES OF ALL FINDINGS.
FINALLY, THE REQUIREMENT THAT NOTICE OF PRESIDENTIAL FINDINGS BE
DEFERRED NO LATER THAN 48 HOURS AFTER THE FINDING IS SIGNED IS THE MOST
TROUBLESOME PROVISION IN THE PROPOSED BILL, EVEN THOUGH IT IS OUR CURRENT
PRACTICE TO PROVIDE NOTIFICATION PRIOR TO IMPLEMENTATION AND WITHIN 48 HOURS
OF OUR RECEIVING THE SIGNED COPY.
THE ISSUES PRESENTED BY THIS ASPECT OF H.R. 1013 ARE NOT NEW. IT HAS
BEEN OUR CONSISTENT POSITION, MR. CHAIRMAN, TO ATTEMPT TO BALANCE THE
EXECUTIVE BRANCH'S NEED FOR FLEXIBILITY TO DEAL EFFICIENTLY WITH
UNFORESEEABLE CIRCUMSTANCES, WITH THE OVERSIGHT RESPONSIBILITIES OF THE
CONGRESS.
4
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FOR EXAMPLE, THE MOST DIFFICULT ISSUE BETWEEN THE EXECUTIVE AND THE
LEGISLATURE WHEN CONSIDERING THE INTELLIGENCE OVERSIGHT ACT OF 1980 WAS THE
QUESTION OF PRIOR NOTIFICATION, WITH THE EXECUTIVE ASSERTING ON
CONSTITUTIONAL GROUNDS THAT THE PRESIDENT COULD DELAY NOTIFICATION. THE
COMPROMISE THAT WAS WORKED OUT WAS THAT PRIOR NOTIFICATION OF THE OVERSIGHT
COMMITTEES WOULD BE THE NORM, BUT THAT THERE WOULD BE ALLOWANCE FOR
EXCEPTIONAL CIRCUMSTANCES.
ON THE QUESTION OF THE PRESIDENT'S CONSTITUTIONAL PREROGATIVE TO DELAY
NOTIFICATION, THE CONGRESS DID NOT CONCEDE THE POINT, BUT CHOSE NOT TO
CHALLENGE THAT CONSTITUTIONAL AUTHORITY IN THAT BILL. SECTION 501B WAS
ADDED INSTEAD. THIS SECTION TAKES INTO ACCOUNT THE POSSIBILITY THAT THE
PRESIDENT MIGHT DELAY NOTIFICATION AND SETS FORTH THE CIRCUMSTANCES UNDER
WHICH HE SHOULD REPORT AFTER DELAYING NOTIFICATION. THIS IS IMPORTANT
BECAUSE OF THE VIEW EXPRESSED BY SOME IN RECENT MONTHS THAT THE PRESIDENT'S
DECISION NOT TO PROVIDE ADVANCE NOTICE OF THE IRAN OPERATIONS WAS A
VIOLATION OF SECTION 501. THIS SIMPLY IS NOT THE CASE, AND THE LEGISLATIVE
HISTORY SURROUNDING CONSIDERATION OF THE OVERSIGHT ACT MAKES THIS CLEAR,
ALTHOUGH IT WAS ACKNOWLEDGED BY ALL CONCERNED THAT DELAYED NOTIFICATION
WOULD HAPPEN ONLY IN THE MOST EXTREME CASES. IN ACTUALITY, THE COMMITTEES
HAVE RECEIVED ADVANCED WORD OF EVERY PRESIDENTIAL FINDING BUT FOR THE TWO
INVOLVING THE ATTEMPTED RESCUE OF OUR HOSTAGES IN IRAN IN 1979-1980 AND THE
NSC INITIATIVE IN 1985 AND 1986.
5
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I.
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IN HIS HEARINGS BEFORE THE SENATE SELECT COMMITTEE IN APRIL 1987, THE
THEN DIRECTOR-DESIGNATE OF THE CENTRAL INTELLIGENCE AGENCY, WILLIAM H.
WEBSTER, PLEDGED TO YOU HIS INTENTION TO NOTIFY YOU OF A PRESIDENTIAL
FINDING IN THE TIMELIEST MANNER POSSIBLE. DURING HIS HEARINGS, HE NOTED
THAT HE BELIEVED NOTIFICATION SHOULD HAPPEN WITHIN 48 HOURS, IF AT ALL
POSSIBLE. HE SAID THAT IT WOULD BE HIS RECOMMENDATION TO THE PRESIDENT THAT
THE CONGRESS BE NOTIFIED OF A PRESIDENTIAL FINDING. AND HE POINTED OUT THAT
THERE COULD ARISE A POINT AT WHICH THE PRESIDENT WOULD NOT ACCEPT HIS
RECOMMENDATION ON NOTIFICATION, A POINT AT WHICH HE SAID HE WOULD BE OBLIGED
TO CONSIDER RESIGNING HIS POSITION.
WE REMAIN CONVINCED THAT THE EXECUTIVE BRANCH'S POSITION ON THIS
CRITICAL ISSUE OF NOTIFICATION IS SOUND, AND, THEREFORE, OPPOSE THE
PROVISIONS OF H.R. 1013. WE WILL DO EVERYTHING REASONABLE TO RESPOND TO THE
REQUIREMENTS OF CONGRESSIONAL OVERSIGHT, BUT WE MUST PRESERVE REASONABLE
FLEXIBILITY FOR DEALING WITH UNFORESEEABLE FUTURE CONTINGENCIES. AS THE
TOWER BOARD NOTED, "THERE IS A NATURAL TENSION BETWEEN THE DESIRE FOR
SECRECY AND THE NEED TO CONSULT CONGRESS ON COVERT OPERATIONS." THAT
TENSION HAS ALWAYS EXISTED, WITH CIA PLACED SQUARELY IN THE MIDDLE. WE DO
NOT BELIEVE THAT THE LEGISLATION, HOWEVER WELL INTENTIONED, WILL REDUCE THAT
TENSION. WE DO BELIEVE, TO PARAPHRASE CHAIRMAN BOLAND, THAT WE SHOULD LEAVE
THE CONSTITUTION AS WE FIND IT. I'M NOT A LAWYER, BUT IT'S MY UNDERSTANDING
THAT THE PRESIDENT'S CONSTITUTIONAL PREROGATIVES CAN'T BE TAKEN AWAY BY
STATUTE. TO TRY TO DO SO, IN OUR VIEW, WOULD SIMPLY INCREASE THE TENSION IN
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THIS AREA IN SITUATIONS WHERE FLEXIBILITY IS MOST NEEDED. INSTEAD, WE
SHOULD, AS THE CURRENT LAW CONTEMPLATES, CONTINUE TO ATTEMPT TO WORK OUT
DIFFERENCES IN 'A SPIRIT OF COMITY AND MUTUAL UNDERSTANDING".
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STAT
STAT
1.0 CENTRAL INTELLIGENCE AGENCY
Office of Congressional Affairs
Washington, D.C. 20505
Telephone: [phone] June 1987
TO:
Mr. Bernie Rainy
Permanent Select CombLittee on Intelligence
House of Representatives
Washington. D.C. 20515
Dear Bernie:
Attached is a copy of the Agency's draft
testimony on H.R. 1013, relating to
congressional oversight of the intelligence
activities of the US, to be presented before
your Committee on 4 June 1987.
Also attached is a classified annex to
the statement of our Executive Director,
James H. Taylorz"
Deputy Director for Legislation
Office of Congressional Affairs
Attachments:
STAT
40';
FORM pi 3 T
Distribution: (w/atts, including OCA MON 0102 87)
Copy #1 -Bernie Raimo, HPSCI
#2 - OCA. Record
#3 - D/OCA
44 - AGC/DLO
-#5 - DD/HA/OCA
DD/LEG/OCA
(3 Jun 87)
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