H.R. 3822, TO STRENGTHEN THE SYSTEM OF CONGRESSIONAL OVERSIGHT OF INTELLIGENCE ACTIVITIES OF THE UNITED STATES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89G01321R001002630001-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 362
• Document Creation Date: December 23, 2016
• Document Release Date: August 6, 2012
• Sequence Number: 1
• Publication Date: February 24, 1988
• Content Type: REPORT

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Intelligence Surveillance Act, or in executive orders and internal
CIA regulations strongly influenced by congressional attitudes.
No sensible person would contend-and I certainly do not-that
our current laws dealing with covert action and its oversight
cannot be improved. This subcommittee and its staff are to be com-
mended on the thought, care, and effort that have clearly gone into
the consideration and discussions of H.R. 3822.
For reasons I have tried to explain, however, I do not believe
that the end results this distinguished subcommittee or its full
parent committee wants to achieve, in the discharge of Congress'
constitutionally mandated responsibilities, are most likely to be at-
tained by moving forward with H.R. 3822 or any similar legislation,
unavoidably drafted in some haste in the wake of the issuance of
the Iran-Contra Report and under the influence of emotions which
that unhappy affair inevitably engendered on Capitol Hill, particu-
larly when any such legislation would have to be debated and en-
acted amidst the mounting, divisive and partisan pressures of a
Presidential election year.
In my opinion, which I offer with diffident respect, our nation's
interests would be far better served if, instead, a small group of
knowledgeable senior administration officials, past or present,
could be convened to meet quietly with a corresponding, and corre-
spondingly small, bipartisan group of appropriate congressional
leaders from both houses; and then, over the course of several
months' frank, private discussion, this joint body, working together,
could develop a set of agreed principles regarding covert action,
work out a viable system for resolving executive/legislative branch
disputes, and supervise the measured, careful drafting of any new
legislation thought to be warranted-for formal introduction,
debate, consideration, and enactment after the 1988 electoral
season, with its attendant demands and pressures, has passed.
This may be a utopian dream, but as a concerned citizen who has
devoted over a quarter century to serving our Nation as an intelli-
gence professional, I would relish seeing this dream become a reali-
ty.
Thank you very much for your time and attention.
[The complete statement follows:]
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GEORGE A. CARVER, JR.
JOHN M. OLIN SENIOR FELLOW
CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES
ON
H.R. 3822
TO THE
SUBCOMMITTEE ON LEGISLATION
OF THE
PERMANENT SELECT COMMITTEE
ON INTELLIGENCE
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Introduction ........................................... 1-3
Covert Action: Its Importance, Complexities
and Oversight Ramifications ............................. 3-10
Foreign Affairs and Intelligence:
The Constitution's Divison of
Responsibility and Authority ......................... 10-20
Security Concerns ...................................... 20-27. .
Reporting Requirements and Flexibility ................. 27-31
The Matter of "Findings" -- Pertinent
Considerations, Including Security and
Germane Foreign Attitudes ............................ 31-48
Notification Timing: Pertinent'
Issues and Problems.:................................. 48-56
Some Ramifications of "Prior Notification" ............. 56-61
The Dangers of Hasty, Emotion-impelled Reforms...:..... 61-64
What Ought to Be Done .................................. 64-68
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I am.honored by your invitation to appear today to comment
not only on the specific bill you are considering, H.R. 3822, but
also on the larger issues addressed in that proposed legislation
These larger issues impinge directly on our nation's
security and even its chances of survival in this strife-ridden
and now thermonuclear world. As we all know, it is not easy for
an open democracy, such as ours, to have the kind of effective
intelligence structure our nation needs -- one that is capable of
protecting our democratic freedoms but does not curtail or, even
worse, subvert them. These are issues to which I devoted the
first twenty-six years of my professional life and in which, as a
citizen, I have an abiding interest. It is a pleasure, as`well
as a privilege, to discuss them with this sub-committee. I feel
confident that as fellow citizens we have common goals and
objectives; for the issues-here involved transcend personal,
parochial or partisan considerations. Our differences, and your
differences among yourselves, will be over the optimum means of
achieving these common goals, and the best way of resolving the
complex, thorny questions these issues, in a democracy,
inevitably pose.
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To supplement my orally presented summary comments,'I am
submitting this fuller statement for the record. To this
.statement, I am also appending an essay entitled "A Needed
Capability Jeapordized: Covert Action in the Wake of the Iran-
Contra Hearings", which I wrote soon after the hearings ended and
was published in Ma = Diego Union (on 16 August 1987), in =g
Washin on Ting (on 17 August 1987), and in various other
This statement begins with a conceptual analysis of covert-
action, its complexities, and the problems its employment poses
for an open, democratic society such as ours. I then touch on
the Constitution's division of authority and responsibility in
the fields of foreign affairs and, particularly, intelligence,
and the resultant need for our government's executive and
legislative branches to recognize each other's Constitutional
roles and to work harmoniously together, if our nation's
interests are to be protected and , well. served.
Within that context, an analysis is made of H.R. 3822's
provisions and, especially, the language in which they are
phrased, to assess the impact of these provisions, and this
language, on a number of topics germane to the conduct of covert
action,and of intelligence operations in general. In sequence,
this statement examines certain security concerns, reporting
requirements and flexibility, the matter of "findings", and some
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of that complex issue's various ramifications. A look is then
taken at questions involved in the timing of congressional,
notification and, in particular, "prior notification". My
submission concludes by noting some of the risks inherent in
emotion-impelled "reforms", especially ones drafted in haste, and
then'respectfully offering, for this sub-committee's
consideration, a few of my own thoughts on what ought to be done,
in light of our total national interests, with regard to the
important matters you are addressing.
COVERT ACTION: ITS IMPORTANCE. COMPLEXITIES
AND OVERSIGHT RAMIFICATIONS
The.primary focus of the specific legislation this sub-
committee is considering, H.R. 3822, and of current congressional
concerns with respect to intelligence is, quite understandably,
..covert action. Here, however, I most respectfully ask you to be
careful, and not allow justified concerns to skew an essential
sense of proportion.
The primary function of the U.S. intelligence community is
to collect information, distill it into intelligence by analysis,
and then disseminate the fruits of this collection and analysis
to those in our government's executive and legislative branches
whom. that intelligence will aid in the discharge of their
Constitutionally-mandated responsibilities. The CIA is charged
with all of these roles, plus that of being.the U.S. intelligence
3
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community's central coordinating linch-pin -- a role highlighted
by the fact that there is no Director of the CIA (alone)..-' Its
administrative head, the Director of Central Intelligence, is
also -- concurrently--- the president's senior intelligence
advisor and head of the U.S.-intelligence community.
Covert action is an important CIA responsibility but an
ancillary one. Extreme care should be taken to ensure that any
"fixing" of covert action does not unintentionally hamper the
Agency's and the intelligence community's ability to perform
their primary mission -- for?example,.by putting sensitive
intelligence sources and methods at risk. This is particularly
important when arms limitation treaties, especially ones
involving strategic arms, are being considered-and negotiated;
for our compliance-monitoring capabilities, in this critical
sphere, hinge on the U.S. intelligence community's overall
effectiveness.
"Covert action" is a term with such a broad scope that it is
impossible to define with any degree of precision.` It
encompasses everything from encouraging a foreign journalist to
write a story or editorial which that journalist might well have
written anyway to supporting, even guiding, fairly large-scale
military activities in foreign lands. Covert action's purpose is
to influence the behavior or policies of key foreign individuals,
groups and nations, and the course of events in key foreign
areas, in ways that further the interests of the nation mounting
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the covert action in question, but also in ways that mask that
nation's hand and enables its involvement to be denied or, at
least, officially disavowed. Perhaps the best way to understand
covert action is to think of it as a form ofinternational
-lobbying that is, ideally, discreet and unadvertised.
The usual euphemism for covert action, employed in the
legislation you are considering, is "special activities" --
defined in Executive. Order 12333 (and elsewhere) as:
"activities conducted in support of-.national foreign
policy objectives abroad which are planned and executed
.:so that-the role of the United States-Government is not
apparent or acknowledged. publicly, and functions in
support of such activities...."
As the::report of the-Iran-Contra Congressional Investigating
Committees notes, on page 375,
"This definition excludes diplomatic activities, the
collection andproduction of intelligence, or related
support functions."
Intelligence activities.,. generally, are not easy for an
open,-democratic society to-conduct effectively, especially in
peacetime. Fora plethora of reasons, covert action is
--.particularly difficult,bor a.society such as-ours, and raises
particularly difficult questions --.ones that have.no_universally
satisfactory resolutions, let alone any simple answers.
To begin with,. there is a consideration that is not polite
to acknowledge or discuss, but which has to be faced. In most
cases, conducting covert action involves contravening, infringing
upon or directly violating the laws of some other nation or .
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nations, with which we are not in a state of war and with which,
indeed, we may have treaty relations whose spirit, if not letter,
such covert actions may also contravene. (The same is also'true
of espionage, but that is another matter.) This does not mean we
should pass a self-denying''ordinance; for - covert' action is'a fact
of international life. It is something that virtually every
nation in the world essays,-frequently. targeted at us;.and some
of?our closest allies, such as Israel, are among its most
indefatigible'practitioners.- such considerations do mean,
however, that covert-action should be used very circumspectly,
far more circumspectly than it-sometimeshas been -- as Iran-
Contra demonstrates all=too clearly. .-When,astutely-employed,
covert action can-be a very:useful, effective adjunct to policy;
but it can never be a substitute for policy -- or for thought.
In this context, there is a salient feature of our political
system-whose consequences are frequently ignored or brushed
aside. Our Constitution combines in one-individual, our
President, two distinct offices and functions that most other
nations divide: the' government's chief executive and
administrative officer, and the nation's Chief of State. The
former is -a partisan political figure chosen (in America) by
election; the-latter, a symbolic focus of national unity -
.supposedly., in-that capacity,-above the fray of political
partisanship. As chief executive officer, a President should
certainly be accountable for his and his administration's
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254,
actions. Nonetheless, it is by no means necessarily in our
national interest for our Chief of State to sign "findings" or
any other documents. directing agencies or officers of the U.S.
Government to infringe upon or violate the laws of other nations
with which we are not in.a state of declared war. NSC staff
members, national security advisors,. cabinet officers and
Directors of Central Intelligence are all expendable; but in our
government, Presidents are not. As Chief of State, an American
President should be able to distance himself or herself from,
even disavow, a covert action that he or she approved, even
ordered, as chief executive. This may sound complicated, but so
is the real world and, hence, effective diplomacy that runs with
the grain of its complex reality..
Such messy complexities, and the troublesome issues they
raise, lead some to argue that the united states should eschew or
abandon covert action altogether. In a perfect world, this might
be desirable; but in the world in which we have no choice but to
live, it would be folly. One point on which members of the
Congressional Committees investigating the Iran-Contra Affair
were agreed is that, to use their Report's words (on page 383),
"Covert operations are a necessary component of our Nation's
foreign policy. The real question before Congress, and the
American people, is not whether our nation should conduct covert
action but, instead, how such operations should be handled,
controlled and reviewed to ensure that. they are soundly
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conceived, efficiently executed and effective, but.do not do
injury to any of our democratic polity's fundamental interests or
basic values.
Congress was quite understandably distressed by the kinds of
covert operations mounted during what we now term "Iran-Contra",
by these operations' execution and, particularly, by the way in
which Congress was handled with respect to them. No matter how
admirable or defensible the administration's motives and
objectives may have been, the way in which these operations-were
developed and run violated every canon and precept of sound
professionalism, not to mention common sense. Furthermore, all
other considerations apart, the administration's manner of
dealing with Congress during this episode was both inept and
politically tone-deaf.
Congress has ample reason to be irritated at the
administration, and concerned about the way it handled that
specific covert action. In dealing with important issues,
however, particularly ones as complex as these, all prudent
humans -- including distinguished members of Congress, and of
both of its intelligence oversight committees -- should avoid
acting hastily, with punitive intent, under the stimulus of
irritation.
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In its 24th Chapter of their Report -- "Covert Action in a
Democratic Society" -- the Congressional Committees investigating
Iran-Contra posed the fundamental question:
"Is it possible for an open society such as the United
States to conduct such secret activities effectively?
And if so, by what means can these operations be
controlled so as to meet the requirements of
accountability in a democratic society?"
In answering that question, the report noted the laws and
procedures adopted after the investigations and debates of the
mid-1970s, and then went on to observe (also on page 375) that
"Experience has shown that these laws and procedures, if
respected, are adequate to the task."
Amplifying this theme, the Iran-Contra Report's
"Recommendations" chapter (28) opens with two paragraphs which
read:
It is the conclusion of these Committees that the
Iran-Contra. Affair resulted from the failure of
individuals to observe the law, not from deficiencies
in existing law or in our system of governance. This
is an important lesson to be-learned from these
investigations because it points to the fundamental
soundness of our constitutional processes.
Thus, the principal recommendations emerging from
the investigation are not for new laws but for a
renewal of the commitment to constitutional government
and sound processes of decisionmaking.
That chapter does go on to recommend "some changes in law,
particularly relating to oversight of covert operations", and
some of those recommended changes are reflected in the bill this
hearing was convened to address. Most respectfully, however, I
hope that this Subcommittee's and the entire Congress' --
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discussion and decision about the details of such suggested
changes will be framed within the judicious context set by the
two paragraphs just quoted.
The reference in the second quoted paragraph's concluding
sentence to "the commitment to constitutional government and
sound decisionmaking" raises a whole new set of important,"
complex issues.
FOREIGN AFFAIR AND INTEIMIGENCE:
THE CONSTITOTION'S DIVISION
OF RESPONSIBILITY AND AUTHO TTY
Our Constitution does not explicitly mention intelligence,
let alone covert action, nor does it use the terms "foreign
policy" or "foreign affairs". By design, nonetheless, the
.Constitution divides authority and responsibility in this sphere
as well as in others.
For example, the Constitution gives Congress the "Power ...to
regulate Commerce with foreign Nations" and "To declare War"; In
addition to being named "Commander in chief", however, the
President is given "Power, by and with the Advice and Consent of
the Senate, to make Treaties."
Most of-our nation's Founding Fathers did not regard the
Constitution's division of authority over foreign affairs quite
so.extensive,,or ambiguous, as many would now-argue. At the time
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the Constitution was adopted, the general view was that
Congressional authorities in the foreign policy sphere were
exceptions to the stipulation in the first sentence of Section lo.
of the Constitution's Article II: "The executive Power shall be
vested in a President of the United_States of.America". One of
the few things on which Jefferson,. Hamilton and Madison were all
in agreement was that these exceptions should be construed
"strictly".
As Jefferson put the matter, in 1790:
"The transaction of business with foreign nations is
executive altogether; it belongs, then, to the head of that
department, except as to such portions of it as are.
specially submitted to the Senate. Exceptions are to be
construed strictly."
Hamilton expressed almost identical thoughts in his first
Pacificus letter, published three years lhter:
"It deserves to be remarked, that as the participation of
the Senate in the making of treaties, and the power of the
Legislature to declare war, are exceptions out of the
general "executive power" vested in the President, they are
to be construed strictly, and ought to be extended no
further than is essential to their execution."
Indeed, Jefferson -- with Madison in general concurrence --
extended this line of reasoning to cover the executive's
obligation, which he considered quite limited, to account for the
expenditure of funds appropriated by Congress for the conduct of
foreign affairs. Jefferson, as President,. put his thoughts on
this matter quite succinctly in an 1804 letter to his Treasury
secretary, Albert Gallatin:
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"The Constitution has made the Executive the organ for
managing. our intercourse with foreign nations.... The
Executive being thus charged with the foreign intercourse,
no law has undertaken to prescribe its specific
duties....[I]t has been the uniform opinion and practice
that the whole foreign fund was placed by the Legislature on
the footing of a contingent fund, in which they undertake no--
specifications, but leave the whole to the discretion of the
president."
Legislative-executive branch debates over roles, and
primacy, in the general field of foreign policy are as old as, or
even ante-date, our republic. Parallel debates with specific
respect to intelligence, however, are of considerably more recent
vintage.
Though the word "intelligence" does not appear in the
Constitution, how those who framed it viewed the intelligence
function is quite forcefully and clearly expounded by John Jay --
who as a co-author of the Federalist Pavers and then, under the
new Constitution, our nation's first Chief Justice is certainly a
In Federalist 64, discussing foreign affairs generally and
treaty negotiations specifically, Jay wrote:
"It seldom happens in the negotiation of treaties, of
whatever nature, but that perfect secrecy and immediate
dispatch are sometimes requisite. There are cases where the
most useful intelligence may be obtained, if the persons
possessing it can be relieved from apprehensions of
discovery. Those apprehensions will operate on those
persons whether they are actuated by mercenary or friendly
motives; and there doubtless are many of both descriptions
who would rely on the secrecy of the President, but who
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that of a large popular assembly. The convention have done
well, therefore, in so disposing of the power of making
treaties that although the President must, in forming them,
act by-the advice and consent of the Senate, yet he will be
able to manage the business of intelligence in such manner
.as prudence may suggest." (emphasis in original)
John Jay clearly regarded "the business of intelligence" as
being primarily a presidential or executive branch function, not
a legislative branch responsibility -- a view shared by all
serving presidents. from Washington onward.
with regard to what is now called covert action, Senator
Cohen -- in a 25 September 1987 statement introducing 5.1721 has contended that his bill and hence, by extension, H.R. 3822 as
well: "would, for the first time, provide explicit statutory
authority for the President to authorize covert actions, or
'special activities', in support of U.S. foreign policy
objectives, provided they are authorized in accordance with the
requirements set forth in the bill."
Oval office incumbents and many others would argue strongly,
however, that a President's authority to conduct covert action is
not a gift from Congress and requires no Congressionally-enacted
statute. Instead, they would contend, it derives directly from
Article II of the Constitution itself, specifically, from the
previously quoted first sentence of that article's Section 1 --
"The executive power shall be vested in a President of the United
States of America." -- and from the first sentence of that
13
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article's. Section 2, which explicitly names the President
"Commander in Chief". In appropriating funds for covert
activities, furthermore, Congress has certainly acknowledged
by its own actions --.the right of sucessive Presidents to
initiate, or commission,. the specific covert activities-for which
such funds have been appropriated.
While in'office, our early presidents -- who had been
directly and personally involved in the formulation and adoption
of: our Constitution -- certainly did not act as if they felt that
what we would now term covert action required Congressional
involvement or, even less, prior congressional knowledge.
Indeed, if Jefferson, the drafter of the Declaration of
Independence, or Madison, the principal architect of our..
Constitution had shown, as President, the diffident deference to
Congress that many now claim a President is constitutionally
obligated to show, in conducting foreign affairs, our republic
would not now have its present territorial extent and probably
would not have survived its.perilous initial decades.
In these areas=---where the Constitution delibertely divides
authority -- our national interests are certainly not furthered
by executive-legislative branch squabbles over turf,.or attempted
.raids!con-.:
24 templated that any third party which ;is not an elernent'
25 of, or a contractor, or contract agent of, the United
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6
1 States Government, or is not otherwise subject to
2 United States Government policies and regulations,
3 will be, used to fund or otherwise participate in.any sig-
4 nifcant way in the special - activity ? concerned, or be
5 used to, undertake the.'. special activity concerned on
6 behalf of the United States;
7 "(5) A finding may not authorize any action that
8 would violate any statute of the United States.
9 "(b) To the extent consistent with due regard .for the
10 protection from unauthorized disclosure of classified informa-
11 tion relating to sensitive intelligence sources and methods,
12 the Director of Central intelligence and the heads of all de-
13 partments, agencies, and.entities of the United States Gov-
14 ernment involved in a special activity shall keep, the intelli-
15 gence committees fully and currently informed ?of all special
16 activities which are the responsibility of, are engaged in by,
17 or are carried out for or on -behalf of,_' ?any `department,'
18 agency, or entity of the United States Government, and shall
19 furnish to the intelligence committees any information dr ma-
20 terial concerning special activities which is: in the possession,
21 custody or control of any department, agency, or entity of the
22 United States Government and which is requested;by either-
23 of the intelligence:-co smitteeIn order' to: 'carry out ita
24 authorized responsibilities.,
f RE $822 IH p
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343
7
1 "(c)(1) The President shall ensure that any finding ap-.
.2 proved pursuant to subsection (a): shall be reported to the
3 intelligence committees as soon as possible after:suehapprov-
4 al and prior to the initiation of the special activity. authorized
5 by the finding:, Provided, That if the President determines it
6 is essential to limit access to the finding to meet extraordi-
7 nary circumstances affecting vital interests of the United
8 States, such finding ..may be -reported to the chairmen and
9 ranking minority members of the intelligence committees, the
10 Speaker and minority leader of the House of Representatives,
11 and the'majority and minority leaders of the Senate. In either
12 case, a copy of the finding, signed by the President, shall be
13 provided to the chairman of each intelligence, committee.
14 Where access to a 'finding is limited -to the Members of Con-
15 gress identified above, a statement of the reasons for limiting
16 such access shall also be provided.
17 "(2) In circumstances where time is of the essence and
18 the President determines that it is important to .the national
19 'security interests of the United States to initiate a special
20 activity-- before .the notice required by paragraph (1). can be
21 given, such activity may be initiated' without such notice.
22 "(3) The President shall ensure that notice of a, special
?_23 -activity :undertakenpursuant to paragraph (2) is provided to
24 the intelligence committees,' or to the Members of Congress
25, identified in paragraph (1), as soon as possible, but in no
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8
1 event later than forty-eight hours after the special activity
2 has been authorized pursuant to subsection (a), Such. notice
3 shall be accompanied. by a statement of the President setting
4 forth why time was of the essence -and why proceeding pursu-
5 ant. to paragraph (2) is important to the national. security in-
6 terests of the United States.
7 "(d) The President shall ensure . that the :intelligence
8, committees, or, if applicable, the Members of Congress speci-
.9 feed in subsection (c), are notified of any significant change in
10 a previously-approved special activity, or. any significant un-
11 dertaking pursuant to a previously approved funding, in the
12 same manner as findings are reported pursuant to subsection
13 (c).
14 "(e) As used in this, section,' the term `special activity'
15 . means, with respect to the .Central Intelligence Agency, op-
16 erations in foreign countries other than activities intended
1.7 solely for obtaining, necessary. intelligence, and, with respect
18: to any, other department or. agency : of the. United .States, any
.19 . activity conducted?in support of national foreign policy objet-
20 Lives .abroad which is planned and executed so that the role of
21 the United States Government is not, apparent or. acknowl-
22 edged publicly, and functions in support of such activity, and
23 does not include activities to collect. necessary intelligence, or
24 diplomatic activities carried out by. the Department of. State
25 -or persons otherwise acting pursuant to the. authority of the
H$ 3$.,m
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9.
.1 .President.: A request by any agency or department of the
2 United States to a foreign country or. a private citizen to
3 conduct a special activity on behalf of the United States shall
4 be deemed to be a special activity.
5 "(f) No special activity may be conducted if it is intend-
6 ed to influence United.States political processes, public opin-
7 ion, policies, or media.".
8 SEC. 4. Section. 502 of title V of the National Security
9 Act of 1947 (50 U.S.C. 414) is redesignated as section 504
10 of such Act, and is amended by deleting "501" in subsection
11 (a)(2) of such section and inserting in lieu thereof "503", by
12 striking "Appropriated funds" at the beginning of such sec-
13 tion and inserting in lieu thereof "Funds", and by adding the
14 following new subsection (d):
15 "(d) No funds appropriated for, or otherwise available
16 to, any department, agency, or entity of the United States
17 Government, may be expended, or may be directed to be ex-
18 pended, for any special activity, as defined in subsection
19 503(e), unless and until a Presidential finding required by
20 subsection 503(a) has been signed or otherwise. issued in
21 accordance with that subsection.".
22 SEC. 5. Section 503 of title V of the National Security
23 Act of 1947 (50 U.S.C. 415) is redesignated as section 505
24 of such Act, and subsection (a)(1) of such section is amended
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10
1 by adding, "or any aggregation of defense articles or defense
2 services," after "service".
A}
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APPENDIX B
~y8,/~f5~on.,zea>,eaeli.~ironuo
96006
February 24, 1988
The Honorable Louis Stokes
The Honorable Matthew F. McHugh
Permanent Select Committee on intelligence
U.S. House of Representatives
H-405 Capitol Building-
Washington, D.C.
Dear Chairman'Stokes and Chairman McHugh:
I want to thank you for the warm reception that you and
the members of the Committee extended during my testimony
regarding H.R. 3822.
In addition, I would like to expand on my response to two
questions that arose during my testimony concerning my
proposal for criminal penalties:
-- First, Mr. Richardson asked whether the criminal
penalties that I proposed would hinder the undertaking of
covert activities. As I responded, criminal penalties, in my
view, would not be a hindrance -- indeed, such penalties would
help to keep covert activities on their proper, narrow
course. Under my proposal, members of the intelligence
community -- acting in good faith as nearly all do -- could
rely on the risk of criminal penalties to insist on compliance
with laws that the expedient few might wish to ignore. The
threat of criminality would bolster the resolve of subordinate
and superior officials alike in resisting directives that
evaded the reasonable provisions for notifying the
intelligence committees of covert activities.
Second, Mr. Glickman asked whether the termination of
funding for covert activities about which the President had
failed properly to inform the committees might endanger U.S.
interests or lives. As I stated, in my view, this would not
occur. If a covert activity was underway and the President
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The Honorable Louis Stokes
The Honorable Matthew F. McHugh
February 24, 1988
page 2
and the intelligence committees felt that it should continue
to be funded to avoid risk to U.S. interests or lives, the
President simply could sign a finding authorizing continued
funding and provide it to the committees according to the
law. This finding of course would not retroactively authorize
the past activity or absolve any officials of liability for
that past activity. But such a belated finding and notice to
the committees should be necessary to restore the covert
activity to its proper course.
Finally, I enclose a copy of my resume, as requested by
the Committee.
Permit me to express my appreciation for the courteous
reception that I received this morning.
Sincerely,
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Born in Fort Scott, Kansas on December 25, 1906, the son of
Frank Andrew Clifford and Georgia (McAdams) Clifford. Shortly thereafter
the family moved to St. Louis, Missouri.
Attended public schools and then went to college and law school
at Washington University. in St. Louis, graduating in 1928.
Entered the practice of law in St. Louis in 1928 in association
with Jacob M. Lashly.
Volunteered for service in the United States Naval Reserve in 1943,
and received commission of lieutenant ().g.). Served as special assistant
to'the Commander, Western Sea Frontier, later as assistant Naval Aide to
the President, and as Naval Aide to the President.
Appointed Special Counsel to the President of the United States in
June, 1946 by President Harry S. Truman. Served in that capacity until
February 1, 1950.
In 1945, President Truman assigned him the task of conducting a
study in depth of the unification of the Armed Services. He worked with
the War Department, the Department of the Navy, other departments and
agencies involved, and the Congress for two years thereafter.- There finally,,
resulted the passage of legislation in 1947 entitled "The National Security
Act." He was one of the principal architects of this legislation.
Thereafter, he served as liaison between the White House and the
new Secretary of Defense.
Again in 1949, he worked with the Secretary of Defense, other
departments and the Congress to obtain passage of the "National Security
Act Amendments of 1949" , which greatly strengthened the authority of the
Secretary of Defense and changed the national military establishment into
a regular executive Department of Defense.
Separated from the service in 1946 with the permanent rank of
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On February 1, 1950, he resigned as Counsel to the President
and established a law firm in Washington, D. C. under the firm name of
Clifford and Miller.
In 1960, he served as a member of the Committee on the Defense
Establishment, appointed by Senator John F. Kennedy to survey the organs-
nation, management and administration of the Defense Department. This
committee?was chaired by Senator Stuart Symington.
Between November, 1960 and January, 1961 he represented
President-elect Kennedy in the transition period involving the takeover of
the Executive Branch of Government from the Eisenhower Administration.
In May, 1961 President Kennedy appointed Mr. Clifford a member
of the President's Foreign Intelligence Advisory Board. In April, 1962
Dr. James Killian of M. I. T. resigned as Chairman of the Board because of
III health, and Mr. Clifford was appointed Chairman by President Kennedy.
In 1965, Mr. Clifford made a trip to the Far East and visited
certain countries in.his capacity as Chairman of the Intelligence Board.
In 1966, he served as an advisor to President Johnson at the
Manila Conference.
In 1967, Mr. Clifford and General. Maxwell Taylor visited a number
of Southeast Asian and Pacific countries as personal emissaries of President
Lyndon Johnson.
On January 19, 1968, President Johnson nominated him to be
Secretary of Defense. On January 30, 1968 he was unanimously confirmed
by the United States Senate. On March 1, 1968 he was sworn in as Secretary
of. Defense of the United States.
Mr. Clifford served as Secretary of Defense until January 20, 1969,
after which he returned to the practice of law in Washington, D. C. as
senior partner of the firm of Clifford & Warnke, with offices at 815 Conn-
ecticut Avenue, Washington, D.C.
In April, 1982 he became Chairman of the Board of First American
Bankshares, a bank holding company headquartered in Washington, D.C.
He has also served for many years as a Director of Knight-Ridder Newspapers.
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January, 1969
April, 1976
May, 1976
February, 1977
May, 1978
December, 1978
January, 1980
May, 1980
Awarded Medal of Freedom with Distinction by President
Johnson -highest award given to civilians
Received Distinguished Alumnus Award from the Wash-
ington University School of Law, St. Louis, Missouri
Received Honorary Doctor of Law Degree from
Washington University, St. Louis, Missouri
Appointed by President Carter to be his Special. Emissary
to Greece, Turkey and Cyprus
Received Honorary Doctor of Law Degree from Loyola
College, Baltimore, Maryland
Received Lawyer of the Year Award from the Bar Asso-
ciation of the District of Columbia,, Washington, D.C.
Appointed by President Carter to be his Special Emissary
to India
Recipient of the Harry S. Truman Public Service Award
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yEORCEra::;,Uvn ERSII Y
77 Gra iatr Division
S,,I-/ of 9--no S,,ri ,
Auaroe D,.:.,
15 March,1983
The Hon. Sab Livingston
U.S. House of Representatives
House Permanent Select Coamittee oil Intelligence
Washington, DC 20515-6415 ,
Dear Congress an Livingston:
i have now had ,a chance to review (as you requeate) ',:h-- testimony of
Judge Webster before your o:pl nittee on 24 'February 1988 and also the
unclassified text of NSDD 286. in his testimony, Judge Webster states that
"any concerns about excessive delay in Congressional notification of a
special activity have already been address by NSDD 286 (pp. 6-7)." I do
not share this view and think legislation, and specifically H.R. 3822, is
still required to assure that Congress will be kept properly informed about
covert actions and will be notified before they are undertaken.
As I read it, NSDD 286 clearly recognizes the need for Congress to be
consulted about covert action operations. This appears to be the rationale
behind the statement in the "policy context" section of the docent that
such operations "should be conducted only then va are conf `dent that, if
they are revealed, the American public could find them asnsible." Only
Congress can really provide this insight; yet, it cannot do so if it is not
given prior notice.
Such insight is especially important in circumstances which might pose
such grave risks to the United States that they require virtually immediate
action. I use the word "virtually" here because I can forsee of no
circumstance in which covert action would be employed without some prior
planning being requiree and such planning (which is essential fig an
operational viewpoint) would allow time at least to notify the senior
leadership of Congress. However, were such a circumstance to exist in
which a covert action by the U.S. government had to be launched
immediately, I find the allowance of a grace period of two working days
before the Intelligence Oommittees had to be notified anomalous to say the
least. This grace period could in practice be extended to three days in
the case of federal holidays or even longer if these holidays happen to
coincide with Washington snowstorms.
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I also-find it troublesome that while NSDD 286 permits rotica as well
as information about some covert action operations to be withheld from
congress, it widens the circle of those in the know in the executive branch
and gives the chief of staff to the ,president a key role. This position
has not been filled with persons who have had extensive foraign affairs or
intelligence experience nor should it be. And I am uncomfortable with the
prospect that a chief of o.aff without such experience might =cause of
close personal relations influence the president's decisions about covert
action. Without the check and balance of congressional oversight, under
NSDD 286 the president could really be left blind about the costs and risks
of a covert action.
In sum, Judge Webster's testimony has not changed my vie:': that the
intelligence cammiiiity as well as the country izuld benefit fin,. passage- of
H.R. 3822.
AFX;: jrb
cc: Tone Hon. Matthew Rol ugh
Allan E. Goodman
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APPENDIX D
Columbia University in the City of New York I New York, N.Y 10027
Dear Mr. Stokes,
I have your letter of January 14 inviting my views on H.R. 3822.
My schedule makes it difficult for me to appear before the
.-Subcommittee on Legislation on February 4. However, my letter to you of
31-March 1987 in relation to H.1013, published as Appendix H to the
Hearings on that bill, is relevant also for H.R. 3822, and your
Subcommittee may wish to take account of it.
As you requested, I attach brief comments on the testimony on the
same subject by Assistant Attorney General Cooper before the Senate
-
Committee on Intelligence on S.1721,
K,
Louis Henkin?
Mr. Louis Stokes, Chairman
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515-6415
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Comment on Testimony of Charles J. Cooper
Assistant Attorney General
before
Senate Select Committee on Intelligence
December 11, 1987
Mr. Cooper's. testimony deals with a number of issues. For
convenience and clarity, I address what appear to be the large
constitutional positions that underlie Mr. Cooper's testimony, and
1. Invoking the Executive Power clause (Article II, section 1), Mr.
Cooper's memorandum states: "This clause has long been understood to
confer on the President a plenary authority to represent the United States
and to pursue its interests outside the borders of the country, subject of
course to the limits 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."
It has long been understood that the.President-.has "plenary authority
to represent the United States"; it has not been accepted that he has
"plenary authority.. to pursue its interests-outside its borders."
Whether inside or outside the.borders of the United States, there are
many things the President cannot do even "to pursue CU.S.J interests.".
2. Mr. Cooper's memorandum seems to equate "plenary" power with
"exclusive" power. Some powers of the , President, are perhaps exclusive and
not subject to comprehensive regulation by Congress. There are other
powers that the President may exercise when Congress is silent but as to
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control Presidential action.
3. Mr. Cooper's memorandum does not distinguish among "intelligence
activities." It appears to treat intelligence-gathering and other covert
activities as constitutionally identical.
In my view, they are different in critical respects. As I indicated
in my letter to your Committee last Spring, covert activities are subject
to regulation"by Congress; some means for gathering intelligence --
notably through the diplomatic process -- may not be subject to
comprehensive regulation by Congress (though they, too, may be effectively'
subject to the war powers of Congress, and to its power to regulate the
Executive Branch under powers granted-to Congress by Article II and the
"necessary and proper" clause).
It is accepted that, in John Marshall's phrase, the President is the
"sole organ of the nation in its.external relations". As sole organ, the
President has exclusive power over "communication" and "relations" with
foreign states and over'what is related to or implied in.the diplomatic
process. The gathering of intelligence-by some means is plausibly part of
that process. As to such activities, the President can claim authority
exclusive of Congress.
Covert activities, in my view, are not part of the "sole organ"
function. If the-President has authority to authorize such activities
without authorization by Congress,.it can only be under some general
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3
"executive power", the scope of which is uncertain. There is no basis --
in Marshall, in Hamilton, in Curtiss-Wright, or anywhere else -- for
suggesting that such power'is exclusive and not subject to regulation by
Congress.
The power of,Congress to regulate covert activities, is clear. Covert
activities are elements of "commerce" with foreign nations within the
meaning of Article I, section 8 of the Constitution. Covert activities
may be sufficiently related to war and peace to come within the enumerated
war powers of Congress. They are within the unenumerated "power of
Congress to deal with foreign relations," See Perez v. Brownell, 356 U.S.
44, 59,(1958).
4. The memorandum.confuses the legislative request to be informed of
covert activities with the centuries-old issue between President and
Congress as to executive privilege. The Nixon case cited by Mr. Cooper
confirmed that the President has an executive privilege. The. Court held
that in relation to, the administration of justice the privilege is not
absolute; the Supreme Court may have implied that, in relation to the
administration of justice, the privilege might perhaps be absolute where
diplomatic or military matters are concerned. The Court did not consider
at all the existence, character or scope of executive privilege in
relation to Congress.
I,do not express here any views on the large issue of executive
privilege. Except where the request for information may impinge on
private rights of individuals, the power of Congress to obtain information
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As Mr. Cooper indicates, Congress has long respected the
confidentiality of-the diplomatic process. Whether it has done so out of
courtesy or from a sense of constitutional propriety is uncertain . One
can argue that to the extent that the process is within the exclusive
power of the President, he is entitled to withhold information if he
reasonably thinks that to communicate the information to Congress, even
under injunction of secrecy, would jeopardize the activity. But the
internal confidentiality of the Executive Branch apart, the claims for
Congress's right to know are strong. I agree with Mr. Cooper that where
the President has constitutional'authority to withhold information from
The request for information as to covert activities is a wholly
different matter. Mr Cooper suggests that Congress "in the performance of
its legislative function does not require notification of virtually all
intelligence activities within a fixed period of time." But the
Congressional directive that its Committees be informed when covert
action is undertaken is not a request for information for legislative
purposes only. It -is a form of regulation. In my view, Congress could
prohibit such activities; a fortiori, it can declare that they may take
place only,if Congressional Committees are informed of them.
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