INTELLIGENCE OVERSIGHT ACT OF 1988

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00389R000400720002-7
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• Document Page Count: 413
• Document Creation Date: December 27, 2016
• Document Release Date: August 9, 2012
• Sequence Number: 2
• Publication Date: June 1, 1988
• Content Type: MISC

STAT
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INTELLIGENCE OVERSIGHT ACT
OF 1988
HEARINGS AND MARKUP
BEFORE THE
COMMITTEE ON FOREIGN AFFAIRS.
HOUSE OF REPRESENTATIVES
ONE HUNDREDTH CONGRESS
H.R. 3822
Printed for the use of the Committee on Foreign. Affairs
U.S. GOVERNMENT PRINTING OFFICE
88-038 WASHINGTON : 1988
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COMMITTEE ON FOREIGN AFFAIRS
DANTE B. FASCELL, Florida, Chairman
LEE H. HAMILTON, Indiana
GUS YATRON, Pennsylvania
STEPHEN J. SOLARZ, New York
DON BONKER, Washington
GERRY E. STUDDS, Massachusetts
DAN MICA, Florida
HOWARD WOLPE, Michigan
GEO. W. CROCKETT, JR., Michigan
SAM GEJDENSON, Connecticut
MERVYN M. DYMALLY, California
TOM LANTOS, California
PETER H. KOSTMAYER, Pennsylvania
ROBERT G. TORRICELLI, New Jersey
LAWRENCE J. SMITH, Florida
HOWARD L. BERMAN, California
MEL LEVINE, California
EDWARD F. FEIGHAN, Ohio
TED WEISS, New York
GARY L. ACKERMAN, New York
MORRIS K. UDALL, Arizona
CHESTER G. ATKINS, Massachusetts
JAMES McCLURE CLARKE, North Carolina
JAIME B. FUSTER, Puerto Rico
JAMES H. BILBRAY, Nevada
WAYNE OWENS, Utah
FOFO I.F. SUNIA, American Samoa
WILLIAM S. BROOMFIELD, Michigan
BENJAMIN A. GILMAN, New York
ROBERT J. LAGOMARSINO, California
JIM LEACH, Iowa
TOBY ROTH, Wisconsin
OLYMPIA J. SNOWE, Maine
HENRY J. HYDE, Illinois
GERALD B.H. SOLOMON, New York
DOUG BEREUTER, Nebraska
ROBERT K. DORNAN, California
CHRISTOPHER H. SMITH, New Jersey
CONNIE MACK, Florida
MICHAEL DEWINE, Ohio
DAN BURTON, Indiana
JAN MEYERS, Kansas
JOHN MILLER, Washington
DONALD E. "BUZ" LUKENS, Ohio
BEN BLAZ, Guam
JOHN J. BRADY, Jr., Chief of Staff
TONI G. VERSTANDIG, Staff Consultant
CAROL G. DOHERTY, Senior Staff Assistant
DARA M. SCHLIEKER, Staff Assistant
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CONTENTS
WITNESSES
Tuesday, June 14, 1988: Page
Hon. William H. Webster, Director of Central Intelligence ............................ 4
Hon. Michael H. Armacost, Under Secretary of State for Political Affairs,
Department of State ............................................................................................ 23
Hon. Clark M. Clifford, former Secretary of Defense ....................................... 64
Thursday, June 16, 1988:
Hon. Frank C. Carlucci, Secretary of Defense .................................................... 94
Hon. William S. Cohen, Senator from the State of Maine ............................... 122
Wednesday, June 22, 1988:
Steven R. Ross, General Counsel to the Clerk of the House ............................ 189
MATERIAL SUBMITTED FOR THE RECORD
Letter from John F. Bolton, Assistant Attorney General, Office of Legislative
Affairs, to Congressman Matthew F. McHugh, Chairman, Subcommittee on
Legislation of the House Permanent Select Committee on Intelligence, re-
garding congressional oversight of intelligence activities, June 9, 1987 ........... 48
APPENDIXES
1. Letter from Hon. Don Edwards, Chairman, Subcommittee on Civil and
Constitutional Rights, Committee on the Judiciary, to Chairman Fascell
regarding the proposing leak amendment to H.R. 3822, June 13, 1988, and
letter from Thomas M. Boyd, Acting Assisting Attorney General, Office of
Legislative Affairs, to Chairman Fascell presenting the views of the De-
partment of Justice on H.R. 3822, June 21, 1988 ............................................... 199
2. Letter from Hon. Colin L. Powell, Assistant to the President for National
Security Affairs, to Hon. Louis Stokes, chairman, Permanent Select Com-
mittee on Intelligence, regarding H.R. 3822, May 10, 1988 .............................. 208
3. Letter from Hon. Zbigniew Brzezinski and others to Hon. Louis Stokes,
chairman, Permanent Select Committee on Intelligence, regarding impact
of H.R. 3822 on covert operations, May 10, 1988 ................................................ 215
4. Analysis of Constitutionality of Proposal Enhancing Congressional Over-
sight of Intelligence Activities, prepared by the American Law Division,
Congressional Research Service, Library of Congress, February 11, 1987 .... 219
5. Memorandum for the Attorney General concerning the President's com-
pliance with the "timely notification" requirement of section 501(b) of the
National Security Act .............................................................................................. 234
6. Amendment in the nature of a substitute to H.R. 3822, Intelligence Over-
sight Act of 1988, June 21, 1988 ............................................................................ 298
7. Questions submitted for the record to the Hon. Michael H. Armacost,
Under Secretary for Political Affairs, Department of State, and responses
thereto ........................................................................................................................ 308
8. Questions submitted for the record to the Hon. William H. Webster,
Director, Central Intelligence, and responses thereto ....................................... 315
9. Speech by the Hon. Henry J. Hyde, "'Leaks' and Congressional Over-
sight," March 30, 1988, and chapter 13, "The Need To Patch Leaks" from
the minority report of the Iran-Contra investigation, November 18, 1987 ... 320
10. Resolution adopted by Reserve Officers Association of the United States,
"Notification of Covert Operations," June 25, 1988 ........................................... 327
11. Letter and enclosed memorandum regarding H.R. 3822 from People for
the American Way, to Chairman Fascell, June 17, 1988 .................................. 859
12. Letter regarding H.R. 3822 from the Hale Foundation to Chairman Fas-
cell and Congressman Broomfield, June 9, 1988 ................................................ 409
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INTELLIGENCE OVERSIGHT ACT OF 1988
TUESDAY, JUNE 14, 1988
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
Washington, DC.
The committee met, at 9:30 a.m., in room 2172, Rayburn House
Office Building, Hon. Dante B. Fascell (chairman) presiding.
Chairman FASCELL. The committee will come to order. I would
like to recognize some distinguished guests we have with us this
morning: Mr. George Agree of the Association of Former Members
of Congress is here with a group of distinguished parliamentarians
from Egypt. I would like to have them stand up to be recognized.
We are pleased to have you here to sit in on this committee hear-
ing.
We meet today to begin consideration of H.R. 3822, the Intelli-
gence Oversight Act of 1988, which has been jointly referred to the
House Foreign Affairs Committee and House Permanent Select
Committee on Intelligence. This measure was introduced by our
colleague Mr. Stokes, the distinguished Chairman of the House
Permanent Select Committee on Intelligence. The House Perma-
nent Select Committee on Intelligence ordered the bill favorably re-
ported, as .amended, by a vote of 11 to 6 on May 11, 1987. The
Senate companion measure, S. 1721, sponsored by Senator Boren
and Senator Cohen was approved by the full Senate on March 5th
by a vote of 72 to 19. The measure was jointly referred to the
House Foreign Affairs Committee based on its oversight responsi-
bility of the foreign policy implications of intelligence activities and
specifically on section 2 of the bill which repeals section 662 of the
Foreign Assistance Act, the revised Hughes-Ryan provision.
H.R. 3822 has been the subject of extensive hearings in the intel-
ligence committees. The bill as ordered reported by the committee
enjoys bipartisan support except for one provision, the requirement
that the President must notify the Congress no later than 48 hours
after the initiation of a covert action. A lot has been said about this
provision but I view it as a modest adjustment to the present law,
which, currently requires that the Congress be notified of covert
operations in a "timely fashion." I believe that requirement for
prior notice and consultation is designed not only to recognize the
constitutional duties and prerogatives of the Congress. It also gives
the President the benefit of independent counsel on important for-
eign policy decisions, which are needed to build a bipartisan con-
sensus on covert operations which impact on larger foreign policy
consensus. In short, H.R. 3822 doesn't infringe on the President's
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flexibility; rather it is the essence of true oversight and consulta-
tion. It will ensure that covert actions advance rather than erode
U.S. National Security interests. H.R. 3822 will ensure that the
necessary and appropriate consultation occurs at the time it is
most useful-prior to the initiation of a sensitive covert action.
To assist the committee in consideration of this legislation, we
are pleased to have before us today the Honorable William Web-
ster, Director of the Central Intelligence Agency; the Honorable
Michael H. Armacost, Under Secretary for Political Affairs, De-
partment of State, and the Honorable Clark M. Clifford, former
Secretary of Defense.
Mr. Broomfield has a statement he would like to make.
OPENING STATEMENT OF CONGRESSMEN BROOMFIELD
Mr. BROOMFIELD. Thank you very much, Mr. Chairman.
I wish to join in welcoming the Director of Central Intelligence,
Judge Webster, as well as Michael Armacost, the Deputy Under
Secretary of State.
Let me say at the outset I cannot support the bill we are discuss-
ing this morning in its present form.
This does not mean that H.R. 3822 does not have some desirable
elements. It would help to clarify and consolidate the laws applica-
ble to the reporting of intelligence activities, particularly covert ac-
tions.
The basic problem with the bill is the requirement to report to
Congress all presidential findings authorizing covert activities
within 48 hours. Regardless of misunderstandings that may arise
from time to time, the President simply must have more flexibility
to delay notification for a time, especially in sensitive circum-
stances.
This is because requiring immediate notification in every case
could inhibit the President from taking action essential to the na-
tional security.
It could also discourage foreign governments and others from co-
operating with the United States because of the perception that in-
formation given to Congress is not completely secure.
Mr. Chairman, former senior officials of our government are vir-
tually unanimous in their belief that notification to Congress of
covert action may have to be delayed in certain cases. Those who
have come forward-former National Security Advisor Zbigniew
Brzezinski, Henry Kissinger, and Brent Scowcroft and former Di-
rectors of Central Intelligence William Colby, Richard Helms, and
Stansfield Turner.
I ask that a letter to Chairman Stokes of the Intelligence Com-
mittee by several of these prominent Americans be included in the
record.
Chairman FASCELL. Without objection, so ordered.'
Mr. BROOMFIELD. However, since the Minority heard only late
last week that a private witness would be appearing on behalf of
the 48-hour bill, the Minority has not been able to accommodate
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the schedule of the many witnesses who are opposed to this provi-
sion.
I hope, Mr. Chairman, you will have another hearing. I hope at
that time we will be able to schedule a witness of our choice.
Mr. Chairman, I want to note our former chairman and col-
league, Clem Zablocki, supported a limited exception to the con-
gressional notification requirement during debate on the current
oversight act in 1980.
He stated,
The legislation makes the fundamental recognition that in extraordinary circum-
stances advance information on covert operations might be withheld from the Select
Committees on Intelligence. ... Such exemptions are absolutely essential to a
strong intelligence community and important for U.S. security.
Mr. Zablocki also stated that the exemption-
Will also help the American intelligence community to maintain the extraordi-
nary secrecy necessary for intelligence activities and promote cooperation from the
intelligence communities of friendly countries.
Let me make it clear, however, that I do not believe that the Ex-
ecutive Branch has an unfettered right to withhold information on
covert activities from Congress. Under legislation I have sponsored,
H.R. 3611, the President could delay notification for a time, but
only if there were an emergency constituting a grave and immedi-
ate threat to national security.
I would have to say that an excellent example was the Canadian
rescue operation during the Carter Administration.
Under my approach, the President would have to make a written
determination that the situation justified withholding notification
from Congress. In addition, the President would have the option of
notifying only four congressional leaders and not eight members of
Congress, as at present.
In my view, this bill is a misguided attempt to cure the ills of the
Iran-Contra affair. But the Administration has already gone far in
that direction. In particular, I think everybody owes a great tribute
to Bill Webster for what he personally has done.
The President's new. national security decision directive on
covert actions, states that notification can be delayed only in "rare,
extraordinary circumstances." This is consistent with my concept.
The President is also required under the NSDD to review such a
decision together with his senior advisors every ten days.
Early on during the investigation of the Iran-Contra affair, the
Tower Commission clearly placed the blame on the National Secu-
rity Council.
They commended the Administration for removing speedily to
ti make the necessary corrections, in particular removing the NSC
from covert operations.
Similarly, the Majority Report of the Iran-Contra Committees-
and Mr. Hamilton, one of the co-chairmen is here-itself indicated
that the basic problem in. the-Iran-Contra affair were the people,
.not the law. s.Jt__isxnot- clear, therefore, :why the investigating com-
mittees and.-the intelligence committees have recommended the in-
flexible approach we have before us today.
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It is clear to me that the 48-hour requirement is an unconstitu-
tional intrusion on the ability of the President to conduct necessary
covert action in support of United States foreign policy interests.
There is much in this bill that is useful-I think that this is a
point that should be made as well as some things that are very con-
structive. But H.R. 3822 is flawed by the insistence of its propo-
nents on the inclusion of the absolute 48-hour notification provi-
sion.
How can this be seen as anything but a purely political issue?
The Administration has extensively reformed its own internal pro-
cedures. It has also cooperated closely with the congressional intel-
ligence committees in approving this bill.
It seems that the proponents of this bill, want to cause a veto by
the President over the 48-hour issue. If so, they have chosen the
wrong issue.
There is no doubt that, constitutionally as well as practically, the
48-hour requirement is seriously defective.
With that said, I am thankful for this opportunity to discuss this
bill. I particularly look forward to the testimony of the Administra-
tion witnesses. Thank you very much.
Mr. LEACH. Will the gentleman yield for a unanimous consent?
Mr. BROOMFIELD. I would be happy to yield.
Mr. LEACH. I would like to request the Chair to allow me to
insert in the record a particularly prescient quote from the gentle-
man from Michigan on a floor statement holding entirely this posi-
tion. I would say this is not a view that is novel to the gentleman
from Michigan in this particular year.
It is a long-held, firm conviction for which he is to be respected. I
would like unanimous consent to place that in the record.
Chairman FASCELL. Without objection, I am sure Mr. Broomfield
will not object.
[The information follows:]
Henceforth, in extraordinary circumstances affecting vital national interests-the
President will be allowed to defer reporting to Congress on CIA covert action oper-
ations abroad. The key word here is defer. The President is not excused forever
from letting us know about such activities. * * * We are just allowing him to post-
pone his reporting in those rare instances where, for example, prior disclosure
would jeopardize the lives of the personnel or the methods employed in a particular
covert action activity.
Mr. BROOMFIELD. Thank you very much.
Chairman FASCELL. Mr. Webster, let's start with you. You have a
statement. You can put it in the record. You may summarize it.
STATEMENT OF HON. WILLIAM H. WEBSTER, DIRECTOR,
CENTRAL INTELLIGENCE
Judge WEBSTER. Thank you, Mr. Chairman. I am sure I cannot
improve on what Mr. Broomfield said.
In any event, I am pleased to be here to share some of my
thoughts on H.R. 3822, the Intelligence Oversight Act of 1988.
Since this is the first time I have appeared before this Committee
as Director of Central Intelligence, I also want to take this opportu-
nity to provide you with my views on the relationship between this
Committee and the CIA.
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Chairman FASCELL. I think that would be very useful, Mr. Web-
ster. Let me on behalf of the committee welcome you. We are de-
lighted that you have this opportunity to appear with us. We have
felt for a long time that it was absolutely essential to maintain the
closest relationship with the Agency.
Life being what it is on the Hill, we do not always get what we
want. But nevertheless, because everything you do in your Agency
does have such an impact on policy, we are delighted to have you
here today even if it is on a peripheral matter.
Judge WEBSTER. Thank you, Mr. Chairman.
The views expressed in this statement on H.R. 3822 reflect the
position of the Administration. I draw your attention at the outset
to the Administration position, as conveyed to Congress in the
President's legislative message, that a bill which fails to preserve
the flexibility and authority the President needs to conduct intelli-
gence activities effectively will not be acceptable to the President.
Mr. Chairman, my testimony today will be the third time I have
testified on Intelligence Oversight Legislation. I appeared last No-
vember before the Senate Intelligence Committee to testify on simi-
lar legislation and in February before the House Intelligence Com-
mittee on H.R. 3822. In my testimony before those committees, I
focused primarily on whether the legislation was truly necessary,
and on the practical impact of the Oversight bill on the intelligence
community. I intend to address both points in my testimony on the
House bill today.
In my remarks before the Senate and House Intelligence Com-
mittees I questioned the need for this type of legislation. Although
both Intelligence Committees subsequently decided to recommend
approval of the legislation, I still believe that this legislation is not
a necessary response to the concerns Members of the Congress
have expressed about the oversight of covert action.
As you know, the President recognized last year that there was
room for improvement in the way the two branches were meeting
their responsibilities. As a result, he took concrete, substantial
steps to establish improved procedures to ensure that Congress is
given the opportunity to play its appropriate oversight role.
These new procedures, in the form of a National Security Deci-
sion Directive on Special Activities, NSDD-286, much of which has
been declassified, clarify the rules by which covert actions are re-
viewed, approved, and reported to Congress. In fact, many of the
proposals contained in H.R. 3822 are already contained in NSDD-
286. This can be illustrated by making a few comparisons between
the bill and the presidential directive.
The bill requires that findings be in writing, cannot be made ret-
roactive, and must be consistent with existing law. Similar require-
ments are contained in the NSDD.
The bill makes clear that a presidential finding must be obtained
before any agency or department can conduct a covert action. The
presidential directive affirms this principle.
The bill requires that a presidential finding specify the names of
each department or agency of the U.S. Government that is funding
or participating in a significant way in a covert action, and wheth-
er it is contemplated that any third party will be used to fund or
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otherwise participate in a significant way in the .covert action.
Again, the presidential directive contains the same requirement.
It is not surprising or coincidental that provisions of the bill are
similar to the presidential directive. The procedures the President
has installed were developed following close and prolonged consul-
tation with members and staffs of the intelligence committees.
While a presidential directive is not the same as legislation, I am
not persuaded that new legislation at this time is the best way to
address the concerns that Members have with the congressional
role regarding special activities. In my view, a legislative remedy
should be employed only if it is clear that there is a basic deficien-
cy in the oversight process. That is doubly the case when the legis-
lative remedy proposed raises constitutional issues that threaten to
divide the two branches in an area where effective work places a
premium on cooperation.
The Iran-Contra matter, while serious, has not in my view dem-
onstrated that the system of congressional oversight of the intelli-
gence community established under current statutes is seriously
flawed. Many of the problems exposed, were the result of officials
failing to follow existing procedures and rules, as Mr. Broomfield
pointed out in his statement.
As you may be aware, I have taken steps within the CIA to disci-
pline those employees who failed to follow CIA procedures or who
testified to Congress in a manner that was not candid- or complete.
Those actions, taken in light of the requirements defined by cur-
rent statute, in my view have adequately addressed the problems
we found.
Similarly, to the extent that there were any procedural short-
comings demonstrated by the Iran-Contra matter, they have al-
ready been addressed by the new presidential directive within the
statutory framework presently existing.
I would like to emphasize that any legislation that is enacted
should not adversely affect the intelligence community's ability to
do its job. In this connection, Mr. Chairman, the bill passed by the
Senate in March and the bill marked up by the House Intelligence
.Committee have addressed constructively some of the important
substantive concerns I and other Administration officials raised
with the original Senate bill introduced in that body.
Both the House and Senate bills, for example, recognize the need
to report on special activities and intelligence collection in a
manner consistent with due regard for the protection of sensitive
intelligence sources and methods. I am also pleased that neither
bill requires that the finding specify the identity of foreign coun-
tries assisting the Agency in the conduct of covert action.
These important safeguards will in my view go a long way in as-
suring friendly intelligence services and potential agents that
source-identifying information will not be widely disseminated and
possibly compromised.
I am also very pleased with the changes in the original House
version of the bill made by the House Intelligence Committee in re-
sponse to concerns I raised before that committee. My reservations
regarded the definition of covert action, the expenditure of non-ap-
propriated funds and the reporting. of the transfer of Defense arti-
cles or services. In particular, the new definition of covert action
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removes much of the ambiguity over what constitutes a covert
action and is in my view a distinct improvement over the current
definitions.
While the intelligence committees have addressed several con-
cerns previously raised in my testimony before those committees,
there is one area of the bill that remains particularly troublesome.
This area of difficulty involves the provision of the bill that re-
quires notification of a covert action to Congress, without excep-
tion, within 48 hours after the signing of a finding. Last summer,
the Department of Justice provided the Congress with its views on
the constitutionality of such a provision, so I will not address that
issue here. I have two separate concerns about this provision.
First, the fact that there is a sharp difference of interpretation
between the view of the Administration and the position embodied
in this bill regarding this provision's constitutional validity will
promote tension between the Executive and Legislative Branches
for years to come. In the intelligence area such tension has the po-
tential to disrupt the cooperation and trust that effective national
security policy requires.
Second, I believe that as a practical matter allowance must be
made for that rare case where a limited delay in congressional no-
tification is critical to preserve the absolute secrecy of an operation
when, for example, lives are at stake. In such a rare case, the suc-
cess of an operation may depend on the cooperation of a foreign
government that has conditioned its support on the President de-
laying congressional notification until the operation is completed.
An inflexible notification requirement could force a President to
choose between providing the congressionally required notification
within 48 hours and jeopardizing the lives of innocent Americans,
or delaying that notification to protect those lives. I can under-
stand why any President would be reluctant to agree to a law that
would require such choices.
It is worthwhile to note that concerns about excessive delay in
congressional notification of a special activity have already been
addressed by NSDD 286. That directive requires the National Secu-
rity Planning Group to reevaluate at least every ten days a deci-
sion to delay congressional notification of a given finding.
This will ensure that when a delay in notification is necessary,
the reason for that decision will be continually reassessed by re-
sponsible senior officers of several agencies or departments so that
the delay will be as short as possible. I repeat, however, that I can
think of very few circumstances that would ever necessitate such
extraordinary steps.
Mr. Chairman, if the committee should nevertheless decide that
legislation is necessary to limit the President's authority to delay
notification, I would urge the Members to give serious consider-
ation to language contained in a bill proposed by Ranking Minority
Member Broomfield that would allow the President to delay notifi-
cation if he determines that an emergency constituting a grave and
immediate threat to the national security of the United States
exists. While such a standard may not cover all situations where
lives are , at stake, it would allow the President the flexibility to
delay notification in circumstances where the government faces a
grave and immediate threat to its security.
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Although not directly relevant to the legislation before this com-
mittee, I thought this would be an appropriate time to address a
concern I understand some Members have with respect to access by
the Foreign Affairs Committee to intelligence information. In my
view, the Foreign Affairs Committee has a legitimate need for in-
formation about developments around the world. Some of this in-
formation is classified. Our best intelligence analysis about the sig-
nificance and implications of such developments can play an impor-
tant part in the committee doing its work properly.
I believe the record will show that the Central Intelligence
Agency has, in fact, been responsive to the request of the commit-
tee for such information. Some recent statistics help to illustrate
this point. During the period from 1986 to the present, there have
been 48 staff briefings, 68 Member briefings, and 14 appearances
before the committee involving formal testimony.
To the Congress as a whole, CIA now provides more than 1,000
briefings a year. Listening to these briefings takes a great deal of
valuable time on your part, so I gather you must find them useful.
The substance of the information conveyed by the Agency to the
Congress has ranged from pre-trip briefings on particular countries
for Members to formal testimony on the disaster at Chernobyl or
terrorism in general. In addition, the committee has access to the
National Intelligence Daily, our National Intelligence Estimates
and a variety of other intelligence publications. And I would urge
members of this committee who are interested in obtaining more
intelligence information to take advantage of the access of the com-
mittee to this wealth of information.
While I believe we have been responsive to the committee's re-
quest for intelligence information, I hope that you will understand
my need to protect from disclosure operational intelligence infor-
mation that might jeopardize our sources and methods for gather-
ing this information.
When this information is compromised, not only is the particular
source of intelligence lost to the Government, but others become
reluctant to cooperate for fear their identities will also be disclosed.
In some cases it may be advisable to disclose sensitive operational
information in order for Congress to conduct effective oversight. A
decision was made by Congress itself in 1980 to limit this type of
information to the intelligence committees. This decision was a
wise one, and I would strongly oppose any proposal to expand the
number of congressional committees directly involved in intelli-
gence oversight.
In addition to the question of access to intelligence information
in general, I understand some Members are concerned that the
Foreign Affairs Committee is not being briefed on covert actions
that have significant foreign policy implications. Under existing
law and the Intelligence Oversight bill being considered by the
committee, access to covert action information is confined to the in-
telligence oversight committees and the defense subcommittees of
the appropriations committees. I do not believe it is necessary or
wise to expand the number of committees to which we must report
covert actions.
To do so would simply return us to the situation existing before
the Intelligence Oversight Act of 1980 when we had to provide
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covert action information to eight committees of Congress. This sit-
uation made it almost impossible to conduct covert action covertly.
I believe that the concern expressed by some regarding the lack
of committee access to covert action intelligence may be the result
of a misperception as to how covert action relates to our foreign
policy. Covert action is implementation by clandestine means of
the foreign policy of the United States Government. Our foreign
policy is formulated by the President and the Secretary of State.
The Director of Central Intelligence should not make foreign
policy or use covert action as a vehicle for creating a secret foreign
policy. Because the Secretary of State is obligated to keep the For-
eign Affairs Committee informed of our foreign policy, I believe
that the committee does have the necessary means to make its
views known regarding foreign policy, including those specific poli-
cies being implemented by a covert action.
If you believe that the arrangement I have described is not ade-
quate to ensure that the views of the Foreign Affairs Committee
are represented in the oversight of covert action, I would suggest
Congress consider greater use of cross-over membership between
the Foreign Affairs Committee and the House Intelligence Commit-
tee. Such cross-over members are in the best possible position to ex-
press the views of the Foreign Affairs Committee in deliberations
conducted by the House Intelligence Committee. Some of you now
serve or have in the past served very effectively in this way.
In closing, I would like to reemphasize to each of you my person-
al commitment to making the oversight process work. It has
always been clear, and recent experience has again demonstrated,
that the implementation of the foreign policy of our government,
including covert action, can only be successful when the Executive
and Legislative Branches of government work together in an at-
mosphere of mutual respect and trust. This spirit of cooperation
can only occur if the Congress receives the appropriate information
needed to review and make informed judgments on covert action,
while at the same time ensuring that this intelligence is protected
from unauthorized disclosure.
The law should reflect not only the need for cooperation, but also
the President's responsibility for the conduct and management of
our intelligence and the importance to the nation of ensuring that
the President has the necessary flexibility and authority to employ
our intelligence capability effectively.
As I have noted, the President has taken corrective steps to im-
prove the oversight system through a presidential directive. At
CIA, I.have approved a number of measures that will prevent a
repetition of the shortcomings in the Agency's performance in the
Iran-Contra matter.
In short, significant changes have been made. I would respectful-
ly submit that they should be given a chance to work. Indeed, they
are working. I am convinced that the current framework, and not
new laws, represents the most appropriate and effective means to
achieve our shared commitment to have Congress play an active,
effective role in the oversight of United States intelligence activi-
ties.
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This concludes my statement. I am prepared to answer your
questions.
[Prepared statement of Director William H. Webster follows:]
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PREPARED STATEMENT OF HON. WILLIAM H. WEBSTER, DIRECTOR, CENTRAL
INTELLIGENCE
MR. CHAIRMAN AND MEMBERS OF THE FOREIGN AFFAIRS COMMITTEE,
I AM PLEASED TO BE HERE TODAY TO SHARE SOME OF MY THOUGHTS ON
H.R. 3822, THE INTELLIGENCE OVERSIGHT ACT OF 1988. SINCE THIS IS
THE FIRST TIME I HAVE APPEARED BEFORE THIS COMMITTEE AS DIRECTOR
OF CENTRAL INTELLIGENCE, I ALSO WANT TO TAKE THIS OPPORTUNITY TO
PROVIDE YOU WITH MY VIEWS ON THE RELATIONSHIP BETWEEN THIS
COMMITTEE AND THE CIA.
THE VIEWS EXPRESSED IN THIS STATEMENT ON H.R. 3822 REFLECT
THE POSITION OF THE ADMINISTRATION. I DRAW YOUR ATTENTION AT THE
OUTSET TO THE ADMINISTRATION POSITION, AS CONVEYED TO CONGRESS IN
THE PRESIDENT'S LEGISLATIVE MESSAGE. THAT A BILL WHICH FAILS TO
PRESERVE THE FLEXIBILITY AND AUTHORITY THE PRESIDENT NEEDS TO
CONDUCT INTELLIGENCE ACTIVITIES EFFECTIVELY WILL NOT BE ACCEPTABLE
TO THE PRESIDENT. -
MR. CHAIRMAN, MY TESTIMONY TODAY WILL BE THE THIRD TIME I HAVE
TESTIFIED ON INTELLIGENCE-OVERSIGHT LEGISLATION. I APPEARED LAST
NOVEMBER BEFORE THE SENATE INTELLIGENCE COMMITTEE TO TESTIFY ON
SIMILAR LEGISLATION AND IN FEBRUARY BEFORE THE HOUSE INTELLIGENCE
COMMITTEE ON H.R. 3822. IN MY TESTIMONY BEFORE THOSE COMMITTEES.
I FOCUSED PRIMARILY ON WHETHER THE LEGISLATION WAS TRULY NECESSARY.
AND ON THE PRACTICAL IMPACT OF THE OVERSIGHT BILL ON THE
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INTELLIGENCE COMMUNITY. I INTEND TO ADDRESS BOTH POINTS IN MY
TESTIMONY TODAY ON THE HOUSE BILL.
IN MY REMARKS BEFORE THE SENATE AND HOUSE INTELLIGENCE.
COMMITTEES I QUESTIONED THE NEED FOR THIS TYPE OF LEGISLATION.
ALTHOUGH BOTH INTELLIGENCE COMMITTEES SUBSEQUENTLY-DECIDED TO
RECOMMEND APPROVAL OF THE LEGISLATION, I STILL BELIEVE THAT THIS
LEGISLATION IS NOT A NECESSARY RESPONSE TO THE CONCERNS MEMBERS OF
THE CONGRESS- HAVE EXPRESSED ABOUT THE OVERSIGHT OF COVERT ACTION.
AS YOU KNOW, THE PRESIDENT RECOGNIZED LAST YEAR THAT THERE WAS
ROOM FOR IMPROVEMENT IN THE WAY THE TWO BRANCHES WERE MEETING
THEIR RESPONSIBILITIES. AS A RESULT, HE TOOK CONCRETE,
SUBSTANTIAL STEPS TO ESTABLISH IMPROVED PROCEDURES.TO ENSURE THAT
CONGRESS IS GIVEN THE OPPORTUNITY TO PLAY ITS APPROPRIATE
OVERSIGHT ROLE. THESE NEW PROCEDURES, IN THE FORM OF A NATIONAL
SECURITY DECISION DIRECTIVE ON SPECIAL ACTIVITIES (NSDD-286), MUCH
OF WHICH HAS BEEN DECLASSIFIED, CLARIFY THE RULES BY WHICH COVERT
ACTIONS ARE REVIEWED, APPROVED, AND REPORTED TO CONGRESS. IN
FACT, MANY OF THE PROPOSALS CONTAINED IN H.R. 3822 ARE ALREADY
CONTAINED IN NSDD-286. THIS CAN BE ILLUSTRATED BY MAKING A FEW
COMPARISONS BETWEEN THE BILL AND THE PRESIDENTIAL DIRECTIVE.
--THE BILL REQUIRES THAT FINDINGS BE. IN WRITING, CANNOT BE
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MADE RETROACTIVE. AND MUST BE CONSISTENT WITH EXISTING LAW.
SIMILAR REQUIREMENTS ARE CONTAINED IN THE NSDD.
--THE BILL MAKES CLEAR THAT A PRESIDENTIAL FINDING MUST BE
OBTAINED BEFORE ANY AGENCY OR DEPARTMENT CAN CONDUCT A COVERT
ACTION. THE PRESIDENTIAL DIRECTIVE AFFIRMS THIS PRINCIPLE.
--THE BILL REQUIRES THAT A PRESIDENTIAL FINDING SPECIFY THE
NAMES OF-EACH DEPARTMENT OR AGENCY OF THE U.S. GOVERNMENT THAT
IS FUNDING OR PARTICIPATING IN A SIGNIFICANT WAY IN A COVERT
ACTION, AND WHETHER IT IS CONTEMPLATED THAT ANY THIRD PARTY
WILL BE USED TO FUND OR OTHERWISE PARTICIPATE IN A SIGNIFICANT
WAY IN THE COVERT ACTION. AGAIN, THE PRESIDENTIAL DIRECTIVE
CONTAINS THE SAME REQUIREMENT.
IT IS NOT SURPRISING OR COINCIDENTAL THAT PROVISIONS OF THE
BILL ARE SIMILAR TO THE PRESIDENTIAL DIRECTIVE. THE PROCEDURES
THE PRESIDENT HAS INSTALLED WERE DEVELOPED FOLLOWING CLOSE AND
PROLONGED CONSULTATION WITH MEMBERS AND STAFFS OF THE INTELLIGENCE
COMMITTEES. .
WHILE A PRESIDENTIAL DIRECTIVE IS NOT THE SAME AS LEGISLATION,
I AM NOT PERSUADED THAT NEW LEGISLATION AT THIS TIME IS THE BEST
WAY TO ADDRESS THE CONCERNS THAT MEMBERS HAVE WITH THE
CONGRESSIONAL ROLE REGARDING SPECIAL ACTIVITIES. IN MY VIEW,.A
LEGISLATIVE REMEDY SHOULD BE EMPLOYED ONLY IF IT IS CLEAR THAT
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THERE IS A BASIC DEFICIENCY IN THE OVERSIGHT PROCESS. THAT IS
DOUBLY THE CASE WHEN THE LEGISLATIVE REMEDY PROPOSED -RAISES
CONSTITUTIONAL ISSUES THAT THREATEN TO DIVIDE THE TWO BRANCHES IN
AN AREA WHERE EFFECTIVE WORK PLACES A PREMIUM ON COOPERATION.
THE IRAN/CONTRA.. MATTER, WHILE SERIOUS, HAS NOT IN MY VIEW
DEMONSTRATED THAT THE SYSTEM OF CONGRESSIONAL OVERSIGHT OF THE
INTELLIGENCE COMMUNITY ESTABLISHED UNDER CURRENT STATUTES IS
.SERIOUSLY FLAWED. MANY OF THE PROBLEMS EXPOSED WERE THE RESULT OF
OFFICIALS FAILING TO FOLLOW EXISTING PROCEDURES AND RULES. AS YOU
MAY BE AWARE, I HAVE TAKEN STEPS WITHIN THE CIA TO DISCIPLINE
THOSE EMPLOYEES WHO FAILED TO FOLLOW CIA PROCEDURES OR WHO
TESTIFIED TO CONGRESS IN A MANNER THAT WAS NOT CANDID OR
COMPLETE. THOSE ACTIONS. TAKEN IN LIGHT OF THE REQUIREMENTS
DEFINED BY CURRENT STATUTE. IN MY VIEW HAVE ADEQUATELY ADDRESSED
THE PROBLEMS WE FOUND. SIMILARLY. TO THE EXTENT THAT THERE WERE
ANY PROCEDURAL SHORTCOMINGS DEMONSTRATED BY THE IRAN/CONTRA
MATTER, THEY HAVE ALREADY BEEN-ADDRESSED BY THE NEW PRESIDENTIAL
DIRECTIVE WITHIN THE PRESENT STATUTORY FRAMEWORK.
I WOULD LIKE TO EMPHASIZE THAT ANY LEGISLATION THAT IS ENACTED
SHOULD NOT ADVERSELY AFFECT THE INTELLIGENCE COMMUNITY'S ABILITY
TO-DO ITS JOB. IN THIS CONNECTION, MR. CHAIRMAN, THE BILL PASSED
BY THE SENATE IN MARCH AND THE BILL MARKED UP BY THE HOUSE
INTELLIGENCE COMMITTEE HAVE ADDRESSED CONSTRUCTIVELY SOME OF THE
IMPORTANT SUBSTANTIVE CONCERNS I AND OTHER ADMINISTRATION
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OFFICIALS RAISED WITH THE ORIGINAL SENATE BILL INTRODUCED IN THAT
BODY. BOTH THE HOUSE AND SENATE BILLS, FOR EXAMPLE, RECOGNIZE THE
NEED TO REPORT ON SPECIAL ACTIVITIES AND INTELLIGENCE COLLECTION
IN A MANNER CONSISTENT WITH DUE REGARD FOR THE PROTECTION OF
SENSITIVE INTELLIGENCE SOURCES AND METHODS. I AM ALSO PLEASED
THAT NEITHER BILL REQUIRES THAT THE-FINDING SPECIFY THE IDENTITY
OF FOREIGN COUNTRIES ASSISTING THE AGENCY IN THE CONDUCT OF COVERT
ACTION. THESE IMPORTANT SAFEGUARDSWILL IN MY VIEW GO A LONG WAY
IN ASSURING FRIENDLY INTELLIGENCE SERVICES AND POTENTIAL AGENTS
THAT SOURCE-IDENTIFYING INFORMATION WILL NOT BE WIDELY
DISSEMINATED AND POSSIBLY COMPROMISED.
I AM ALSO VERY PLEASED WITH THE CHANGES IN THE ORGINAL HOUSE
VERSION OF THE BILL, MADE BY THE HOUSE INTELLIGENCE COMMITTEE IN
RESPONSE TO CONCERNS I RAISED BEFORE THAT COMMI-TTEE. MY
RESERVATIONS REGARDED THE DEFINITION OF COVERT ACTION, THE
EXPENDITURE OF NON-APPROPRIATED FUNDS AND THE REPORTING OF THE
TRANSFER OF DEFENSE ARTICLES OR SERVICES. IN PARTICULAR, THE NEW
DEFINITION OF COVERT ACTION REMOVES MUCH OF THE AMBIGUITY OVER
WHAT CONSTITUTES A COVERT ACTION AND IS IN MY VIEW A DISTINCT
IMPROVEMENT OVER THE CURRENT DEFINITIONS.
PRIOR NOTICE OF SPECIAL ACTIVITIES
WHILE THE INTELLIGENCE COMMITTEES HAVE-ADDRESSED SEVERAL
CONCERNS PREVIOUSLY RAISED IN MY TESTIMONY BEFORE THOSE
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COMMITTEES, THERE IS ONE AREA OF THE BILL THAT REMAINS
PARTICULARLY TROUBLESOME. THIS AREA OF DIFFICULTY INVOLVES THE
PROVISION OF THE BILL THAT REQUIRES. NOTIFICATION OF A COVERT:-
ACTION TO CONGRESS, WITHOUT EXCEPTION, WITHIN 48 HOURS AFTER THE
SIGNING OF A FINDING. LAST SUMMER, THE DEPARTMENT OF JUSTICE
PROVIDED THE CONGRESS WITH ITS VIEWS ON THE CONSTITUTIONALITY OF
SUCH A PROVISION, SO I WILL NOT ADDRESS THAT ISSUE HERE. I HAVE
TWO SEPARATE CONCERNS ABOUT THIS PROVISION.
FIRST, THE FACT THAT THERE IS A- SHARP DIFFERENCE OF
INTERPRETATION BETWEEN THE VIEW OF THE ADMINISTRATION AND THE
POSITION EMBODIED IN THIS BILL REGARDING THIS PROVISION'S
CONSTITUTIONAL VALIDITY WILL PROMOTE TENSION BETWEEN THE EXECUTIVE
AND LEGISLATIVE BRANCHES FOR YEARS TO COME. IN THE INTELLIGENCE
AREA SUCH TENSION HAS THE POTENTIAL TO DISRUPT THE COOPERATION AND
TRUST THAT EFFECTIVE NATIONAL SECURITY POLICY REQUIRES.
SECOND, I BELIEVE THAT AS A PRACTICABLE MATTER ALLOWANCE MUST
BE MADE FOR THAT RARE CASE WHERE A LIMITED DELAY.IN CONGRESSIONAL
NOTIFICATION IS CRITICAL TO PRESERVE THE ABSOLUTE SECURITY. OF AN
OPERATION WHEN, FOR EXAMPLE, LIVES ARE AT STAKE. IN SUCH ARARE
CASE, THE SUCCESS OF AN OPERATION MAY DEPEND ON THE COOPERATION OF
A FOREIGN GOVERNMENT THAT HAS CONDITIONED ITS SUPPORT ON THE
PRESIDENT DELAYING CONGRESSIONAL. NOTIFICATION UNTIL THE OPERATION
IS COMPLETED. AN INFLEXIBLE NOTIFICATION REQUIREMENT COULD FORCE
A PRESIDENT TO CHOOSE BETWEEN PROVIDING THE CONGRESSIONALLY
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OF INNOCENT AMERICANS, OR DELAYING THAT NOTIFICATION TO PROTECT
THOSE LIVES. I CAN UNDERSTAND WHY ANY PRESIDENT WOULD BE
RELUCTANT TO AGREE TO A LAW THAT WOULD REQUIRE SUCH CHOICES.
IT IS WORTHWHILE TO NOTE THAT CONCERNS ABOUT EXCESSIVE DELAY
IN CONGRESSIONAL NOTIFICATION OF A SPECIAL ACTIVITY HAVE ALREADY
BEEN ADDRESSED BY NSDD 286. THAT DIRECTIVE . REQUIRES THE NATIONAL
SECURITY PLANNING GROUP TO REEVALUATE AT LEAST EVERY 10 DAYS A
DECISION TO. DELAY CONGRESSIONAL NOTIFICATION OF A GIVEN FINDING.
THIS WILL ENSURE THAT WHEN A DELAY IN NOTIFICATION IS NECESSARY,
THE REASON FOR THAT DECISION WILL BE CONTINUALLY REASSESSED BY
RESPONSIBLE SENIOR OFFICERS OF SEVERAL AGENCIES OR DEPARTMENTS SO
THAT THE DELAY WILL BE AS SHORT AS POSSIBLE. I REPEAT,-HOWEVER,
THAT I CAN THINK OF FEW CIRCUMSTANCES THAT WOULD EVER NECESSITATE
SUCH EXTRAORDINARY STEPS.
IF THE COMMITTEE SHOULD NEVERTHELESS DECIDE THAT LEGISLATION
IS NECESSARY TO LIMIT THE PRESIDENT'S AUTHORITY TO DELAY
NOTIFICATION, I-WOULD URGE MEMBERS TO GIVE SERIOUS CONSIDERATION
TO LANGUAGE CONTAINED IN A BILL PROPOSED BY RANKING MINORITY
MEMBER BROOMFIELD THAT WOULD ALLOW THE PRESIDENT TO DELAY
NOTIFICATION IF HE DETERMINES THAT AN EMERGENCY CONSTITUTING A
GRAVE AND IMMEDIATE THREAT TO THE NATIONAL SECURITY OF THE UNITED
STATES EXISTS. WHILE SUCH A STANDARD MAY NOT COVER ALL SITUATIONS
WHERE LIVES ARE AT STAKE, IT WOULD ALLOW THE PRESIDENT THE
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ALTHOUGH NOT DIRECTLY RELEVANT TO THE LEGISLATION BEFORE THIS
COMMITTEE, I THOUGHT THIS WOULD BE AN APPROPRIATE TIME TO ADDRESS
A CONCERN I UNDERSTAND SOME MEMBERS HAVE WITH RESPECT TO ACCESS BY
THE FOREIGN AFFAIRS COMMITTEE TO INTELLIGENCE INFORMATION. IN MY
VIEW, THE FOREIGN AFFAIRS COMMITTEE DOES HAVE A LEGITIMATE NEED
FOR INFORMATION ABOUT DEVELOPMENTS AROUND THE WORLD. SOME OF
THIS INFORMATION IS CLASSIFIED. OUR BEST INTELLIGENCE ANALYSIS
ABOUT THE SIGNIFICANCE AND IMPLICATIONS OF SUCH DEVELOPMENTS CAN
PLAY AN IMPORTANT PART IN THE`COMMITTEE DOING ITS WORK PROPERLY.
I BELIEVE THE RECORD WILL SHOW THAT THE CENTRAL INTELLIGENCE
AGENCY HAS, IN FACT, BEEN RESPONSIVE TO THE REQUEST OF THE
COMMITTEE FOR SUCH INFORMATION. SOME RECENT STATISTICS HELP TO
ILLUSTRATE THIS POINT. DURING THE PERIOD FROM 1986 TO THE'
PRESENT, THERE HAVE BEEN 48 STAFF BRIEFINGS, 68 MEMBER BRIEFINGS,
AND 14 APPEARANCES BEFORE THE COMMITTEE INVOLVING FORMAL
TESTIMONY. TO THE CONGRESS AS A WHOLE, CIA NOW PROVIDES MORE THAN
1,000 BRIEFINGS PER YEAR. LISTENING TO THESE BRIEFINGS TAKES A
GREAT DEAL OF VALUABLE TIME ON YOUR PART, SO I GATHER YOU FIND
THEM USEFUL.
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THE SUBSTANCE OF THE INFORMATION CONVEYED BY THE AGENCY TO THE
CONGRESS HAS RANGED FROM PRETRIP BRIEFINGS ON PARTICULAR COUNTRIES
FOR MEMBERS TO FORMAL TESTIMONY ON THE, DISASTER AT CHERNOBYL OR
TERRORISM IN GENERAL. IN ADDITION. THE COMMITTEE HAS ACCESS TO
THE NATIONAL INTELLIGENCE DAILY. OUR NATIONAL INTELLIGENCE
ESTIMATES AND A VARIETY OF OTHER INTELLIGENCE PUBLICATIONS.
I WOULD URGE MEMBERS OF THIS COMMITTEE WHO ARE INTERESTED IN
OBTAINING MORE INTELLIGENCE INFORMATION TO TAKE ADVANTAGE OF THE
ACCESS OF THE COMMITTEE TO THIS-WEALTH OF INFORMATION.
WHILE I BELIEVE WE HAVE BEEN RESPONSIVE TO THE COMMITTEE'S
REQUEST FOR INTELLIGENCE INFORMATION. I HOPE THAT YOU WILL
UNDERSTAND MY NEED TO PROTECT FROM DISCLOSURE OPERATIONAL
INTELLIGENCE INFORMATION THAT MIGHT JEOPARDIZE OUR SOURCES AND
METHODS FOR GATHERING THIS INFORMATION. WHEN THIS INFORMATION IS
COMPROMISED. NOT ONLY IS THE PARTICULAR SOURCE OF INTELLIGENCE
LOST TO THE U.S. GOVERNMENT. BUT OTHERS BECOME RELUCTANT TO
COOPERATE FOR FEAR THEIR IDENTITIES WILL ALSO BE DISCLOSED. IN
SOME CASES IT MAY BE ADVISABLE TO DISCLOSE SENSITIVE OPERATIONAL
INFORMATION IN. ORDER FOR CONGRESS TO CONDUCT EFFECTIVE OVERSIGHT.
A DECISION WAS MADE BY CONGRESS ITSELF IN 1980 TO LIMIT THIS TYPE
OF INFORMATION TO THE INTELLIGENCE COMMITTEES. THIS DECISION WAS
A WISE ONE.' AND I WOULD STRONGLY OPPOSE ANY PROPOSAL TO EXPAND THE
NUMBER OF CONGRESSIONAL COMMITTEES DIRECTLY INVOLVED IN
INTELLIGENCE OVERSIGHT.
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ACCESS TO COVERT ACTION INFORMATION
IN ADDITION TO THE QUESTION OF ACCESS TO INTELLIGENCE '
INFORMATION IN GENERAL. I UNDERSTAND SOME MEMBERS ARE CONCERNED
THAT THE THE FOREIGN AFFAIRS COMMITTEE IS. NOT BEING BRIEFED ON
COVERT ACTIONS THAT HAVE SIGNIFICANT FOREIGN POLICY IMPLICATIONS.
UNDER EXISTING LAW AND THE INTELLIGENCE OVERSIGHT BILL BEING
CONSIDERED BY THIS COMMITTEE. ACCESS TO COVERT ACTION INFORMATION
IS CONFINED TO THE INTELLIGENCE OVERSIGHT COMMITTEES-AND THE
DEFENSE SUBCOMMITTEES OF THE APPROPRIATIONS COMMITTEES. I DO NOT
BELIEVE-IT IS'NECESSARY OR WISE TO EXPAND THE NUMBER OF COMMITTEES
TO WHICH WE MUST REPORT COVERT ACTIONS. TO DO SO WOULD SIMPLY
RETURN US TO THE SITUATION EXISTING BEFORE THE INTELLIGENCE
OVERSIGHT ACT OF 1980 WHEN WE HAD TO PROVIDE-COVERT ACTION
INFORMATION TO EIGHT COMMITTEES OF CONGRESS. THIS SITUATION MADE
IT ALMOST IMPOSSIBLE TO CONDUCT COVERT ACTION COVERTLY.
I BELIEVE THAT-THE CONCERN EXPRESSED BY SOME REGARDING THE
LACK'OF COMMITTEE ACCESS TO COVERT ACTION INFORMATION MAY BE THE
RESULT OF A MISPERCEPTION AS TO HOW COVERT ACTION RELATES TO OUR
FOREIGN POLICY. COVERT ACTION IS IMPLEMENTATION-BY CLANDESTINE
MEANS OF THE FOREIGN POLICY OF THE UNITED STATES GOVERNMENT. OUR
FOREIGN POLICY IS FORMULATED BY THE. PRESIDENT AND THE SECRETARY OF
STATE.
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THE DIRECTOR OF CENTRAL INTELLIGENCE SHOULD NOT MAKE FOREIGN
POLICY OR USE COVERT ACTION AS A VEHICLE FOR CREATING A SECRET
FOREIGN POLICY. BECAUSE THE SECRETARY OF STATE IS OBLIGATED TO
KEEP THE FOREIGN AFFAIRS COMMITTEE INFORMED OF OUR FOREIGN POLICY,
I BELIEVE THAT THE COMMITTEE DOES HAVE THE NECESSARY MEANS TO MAKE
ITS VIEWS KNOWN REGARDING FOREIGN POLICY, INCLUDING THOSE SPECIFIC
POLICIES BEING IMPLEMENTED BY A COVERT ACTION.
IF YOU BELIEVE THAT THE ARRANGEMENT I HAVE DESCRIBED IS NOT
ADEQUATE TO ENSURE THAT THE VIEWS OF THE FOREIGN AFFAIRS. COMMITTEE
ARE REPRESENTED IN THE OVERSIGHT OF COVERT ACTION, I WOULD SUGGEST
CONGRESS CONSIDER GREATER USE OF CROSS-OVER MEMBERSHIP BETWEEN THE
FOREIGN, AFFAIRS COMMITTEE AND THE HOUSE INTELLIGENCE COMMITTEE.
SUCH CROSS-OVER_MEMBERS ARE IN THE BEST POSSIBLE POSITION TO
EXPRESS.THE VIEWS OF THE FOREIGN AFFAIRS COMMITTEE IN DELIBERATIONS
CONDUCTED BY THE HOUSE INTELLIGENCE COMMITTEE. SOME OF YOU. NOW
SERVE OR HAVE IN THE PAST SERVED VERY EFFECTIVELY IN THIS WAY.
IN CLOSING, I WOULD LIKE TO REEMPHASIZE TO EACH OF YOU MY
PERSONAL COMMITMENT TO MAKING THE OVERSIGHT PROCESS WORK. IT HAS
ALWAYS BEEN CLEAR, AND RECENT EXPERIENCE HAS AGAIN DEMONSTRATED,-
THAT THE IMPLEMENTATION OF THE FOREIGN POLICY OF OUR GOVERNMENT,
INCLUDING COVERT ACTION, CAN ONLY BE SUCCESSFUL WHEN THE EXECUTIVE
AND LEGISLATIVE BRANCHES OF GOVERNMENT WORK TOGETHER IN AN
ATMOSPHERE OF MUTUAL RESPECT AND TRUST. THIS SPIRIT OF
COOPERATION CAN ONLY OCCUR IF THE CONGRESS RECEIVES THE
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APPROPRIATE INFORMATION NEEDED TO REVIEW AND MAKE INFORMED
JUDGMENTS ON COVERT ACTION, WHILE AT THE SAME TIME ENSURING THAT
THIS INFORMATION IS PROTECTED FROM UNAUTHORIZED DISCLOSURE. THE
LAW SHOULD REFLECT NOT ONLY THE NEED FOR COOPERATION, BUT ALSO THE
PRESIDENT'S RESPONSIBILITY FOR THE CONDUCT AND MANAGEMENT OF OUR
INTELLIGENCE AND THE IMPORTANCE TO THE NATION OF ENSURING THAT THE
PRESIDENT HAS THE NECESSARY FLEXIBILITY AND AUTHORITY TO EMPLOY
OUR INTELLIGENCE CAPABILITY EFFECTIVELY.
As I HAVE NOTED, THE PRESIDENT HAS TAKEN CORRECTIVE STEPS TO
IMPROVE THE OVERSIGHT SYSTEM THROUGH A PRESIDENTIAL DIRECTIVE." AT
CIA, I HAVE APPROVED A NUMBER OF MEASURES THAT WILL PREVENT A
REPETITION OF THE SHORTCOMINGS IN THE AGENCY'S PERFORMANCE IN THE
IRAN/CONTRA MATTER. IN SHORT, SIGNIFICANT CHANGES HAVE BEEN
MADE. I WOULD RESPECTFULLY SUBMIT THAT THEY SHOULD BE GIVEN A
CHANCE TO WORK. INDEED, THEY ARE WORKING. I AM CONVINCED THAT
THE CURRENT FRAMEWORK, AND NOT NEW LAWS, REPRESENTS THE MOST
APPROPRIATE AND EFFECTIVE MEANS TO.ACHIEVE OUR SHARED COMMITMENT
TO HAVE CONGRESS PLAY AN.ACTIVE, EFFECTIVE ROLE IN THE OVERSIGHT
OF UNITED STATES INTELLIGENCE ACTIVITIES.
QUESTIONS.
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Chairman FASCELL. Thank you very much; Mr. Director.
Secretary Armacost.
STATEMENT OF HON. MICHAEL H. ARMACOST,.UNDER
SECRETARY FOR POLITICAL AFFAIRS, DEPARTMENT OF STATE
Mr. ARMACOST. Mr. Chairman, it is a privilege to appear before
the committee on this sensitive subject. I am particularly pleased
to be here with my colleague, Bill Webster. He has given authorita-
tive testimony on behalf of the Administration. The Department of
State obviously concurs fully in that testimony, as in some of the
comments Mr. Broomfield made by way of introducing the subject.
Rather than reading my testimony, I submit it for the record and
am ready to answer your questions.
Chairman FASCELL. Without objection, your entire testimony will
be included in the record, Mr. Secretary.
We thank you.
[The prepared statement of Mr. Armacost follows:]
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PREPARED STATEMENT OF MICHAEL H. ARMACOST
Thank you for the opportunity to appear today to present
the views of the Department of State on the Intelligence
Oversight Act, as marked up by the House Permanent Select
Committee on Intelligence.
Since last December, I have had the opportunity to testify
twice on the issue of oversight legislation.
During this period, significant changes have been made to
the bill which this committee is now considering. Many of the
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specific objections made by the Administration have been
addressed, including in particular problems regarding the
protection of sources and methods and the naming of foreign
countries in findings. We are pleased that changes have been
made to accommodate many of our concerns.
Nonetheless, we regret that our most serious objections
regarding this bill remain. These objections cause us to
oppose the bill, and the President's senior advisers will
recommend he veto this bill if it is presented in its current
form.
Our most fundamental objections remain the absolute and
rigid requirement to notify Congress within 48 hours of the
adoption of a written, finding, combined with the deletion of
the references in present law to the constitutional authorities
of the executive and legislative branches. The President's
National Security Decision Directive 286 on covert action
(declassified last December) requires that findings now be
reported to Congress within 48 hours of signature except in
quite extraordinary situations. A decision to delay
notification must be reviewed by the President's senior
advisers at least once every ten days. We believe that the
NSDD establishes a sound procedure and provides the kind of
flexibility that is necessary in the execution of U.S. foreign
policy.
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In our view, the absolute 48-hour requirement may not be
reasonable in those very rare instances where extremely
sensitive operations require the tightest possible security to
protect the lives of U.S. and foreign nationals. It is
possible that the success of an operation may depend on the
cooperation of a foreign government that has conditioned its
support on delaying notification of an operation. The 1980
Iran rescue mission and the role of the Canadian Embassy in
assisting our people in Iran are specific cases in the past
where advance notification could not be given. It is my
understanding that these two cases constitute, apart from the
Iran finding of January 1986, the only cases since the
enactment of the Hughes-Ryan Amendment of 1974 in which the
Executive Branch did not inform the Congress in advance of a
planned covert action.'
In addition, the Justice Department has concluded that the
48-hour requirement would infringe upon the President's
constitutional authority. The Justice Department has testified
on this matter before the Senate, and has informed the HPSCI of
this conclusion in writing. This fundamental constitutional
objection to the bill remains.
There is one other Administration objection to this bill
which I believe is not fully appreciated by many in Congress.
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In our view, there is a need for Congress and the Executive to
work together closely on intelligence matters, and to provide
mutual trust in handling sensitive intelligence issues. The
Iran-Contra affair obviously put great strains on the
relationship between our two branches in this field. This
episode is now behind us. The President has taken decisive
action to ensure that there will not be a repetition of that
unfortunate affair.
The procedures established by NSDD 286 are working well and
will ensure that covert actions are decided upon in a proper
manner, taking into account all relevant factors. With the
exception of the rigid 48-hour rule, NSDD 286 incorporates the
significant changes to existing law reflected in H.R. 3822.
The problem that we both face at this time is not inadequacy in
the law but, rather, the need to restore confidence and trust.
We do not believe the solution is to pass a bill which could
rekindle confrontation over a basic constitutional issue, as
would be the case if H.R. 3822 were to be enacted. Instead, we
recommend a genuine partnership that will enable Judge Webster
and other senior officials charged with reforming intelligence
procedures the chance to make their reforms work. We see this
as operating to the mutual advantage of the Congress and the
Executive Branch. We therefore .urge the Committee not to
recommend adoption of this legislation.
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DIFFERENCE BETWEEN GATHERING INTELLIGENCE AND COVERT
OPERTIONS
Chairman FASCELL: Mr. Director, we have a clear understanding,
do we not, on the difference between the function of gathering in-
telligence and covert operations?
Judge WEBSTER. I think we do, Mr. Chairman.
Chairman FASCELL. Do you want to tell us in very brief terms
what that difference is, please?
Judge WEBSTER. The intelligence gathering or collection responsi-
bility is to develop by a number of means-human intelligence, sig-
nals intelligence, national collection means, satellites in space-in-
formation about what is going on in other parts of the world as ac-
curately and completely as we can and to present it, an analysis of
that information, in such form that our policy makers can make
wise decisions in the interests of our national security.
Covert action on the other hand represents activities beyond the
collection of information intended to implement the foreign policy
of this country in areas in which normal diplomatic means have
not been successful or are not likely to succeed.
The implementation of covert action, which can range anything
in the way from political action to lethal support for activities in
other parts of the world are approved through a formal process
originating initially within the Central Intelligence Agency, pass-
ing through the National Security Council, to the President who
finds that such action is required and in the interests of national
security, and then that finding is communicated to the Congress.
But it is to implement the established foreign policy of the Gov-
ernment by other means.
Chairman FASCELL. Now this legislation does not affect the flexi-
bility or the authority to conduct intelligence activities, does it?
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman FASCELL. So that under the basic law, whatever au-
thority the President has or whatever authority has been delegated
to you continues unaffected; is that correct?
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman FASCELL. And the intelligence reports or estimates or
analyses that are made available to the Congress under the present
law are made available to the Intelligence Committee as a matter
of course; is that correct?
Judge WEBSTER. That is correct. I think it is also consistent with
legislation that requires that the intelligence committees be kept
timely informed of all significant intelligence activities.
Chairman FASCELL. And, therefore, the Intelligence Committee,
having the primary responsibility for oversight of the intelligence
community, has that relationship?
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman FASCELL. But that relationship does not exist with any
other committee of the Congress, does it, under the present law?
Judge WEBSTER. If I understand your question, Mr. Chair-
man--
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Chairman FASCELL. In other words, when the CIA. or other intel-
ligence agencies report to the Congress, they report to the over-
sight committee, do they not?
Judge WEBSTER. They do, Mr. Chairman, with respect to signifi-
cant intelligence activities and with respect to oversight. But, as I
pointed out in my statement, we are responsive to requests for in-
formation by committees and individual Members of Congress.
Chairman FASCELL. And you have been. The Agency has always
cooperated.
Judge WEBSTER:. We try to be.
Chairman FASCELL: All I am pointing out on the record is where
the official legal responsibility lies.
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman-FASCELL. As far as oversight on intelligence-gathering
is concerned.
Now, just give us a rough estimate, if you will-I don't mean
either in quantitative terms, that is, dollars, or in personnel or any
other identifiable criteria, but maybe some kind of a percentage
figure, or take a number from 1 to 10.
What would you say your intelligence-related responsibility is.
What number? What factor would you give it on a scale of 1 to 10?
Judge WEBSTER. Mr. Chairman, do you mean in relation to covert
action?
Chairman FASCELL. No, sir. First just intelligence-gathering.
See, you have two principal functions, as I see it. One is intelli-
gence-gathering; the other is the implementation of foreign policy
by covert action.
Judge WEBSTER. I think I understand your question.
Chairman FASCELL. How much, on a scale of 1 to 10, do you take
in time, effort, personnel, money, et cetera, to do your intelligence-
gathering, and how much do you take with regard to your covert
operations?
Judge WEBSTER. Covert action requires about 3 percent of our re-
sources.
Chairman FASCELL. So, 97 percent of your resources, by whatever
measurement, more or less-and I am not trying to establish a spe-
cific-is spent on intelligence-gathering, which is your primary
function?
Judge WEBSTER. Gathering and analysis, yes.
Chairman FASCELL. And dissemination within the Government to
the proper authorized people?
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman FASCELL. This bill does not touch that in any way?
Judge WEBSTER. No, it does not.
Chairman FASCELL. So we are dealing with 3 percent of your ac-
tivity; that is covert operation. That means, according to your defi-
nition, something other than intelligence-gathering. It' has to do
with the implementation of a foreign policy decision?
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman FASCELL. Now, in that case, the present law-not this
bill-the present law requires you ?to notify whom?
Judge WEBSTER. In reference to covert action?
Chairman FASCELL. Yes, sir.
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Judge WEBSTER. It requires that the Intelligence Committees be
notified, Mr. Chairman.
Chairman FASCELL. And the law says in timely fashion, does it
not?
Judge WEBSTER. Yes, it does.
Chairman FASCELL. That is a subjective judgment left to the
President?
Judge WEBSTER. My reading of the legislative history at the time
was that it was purposefully flexible or ambiguous and it is in the
President's discretion, but I do not believe it is in his uncontrolled
discretion.
Chairman FASCELL. Well, I like that phrase. I don't know how
you can control a president. We have tried, goodness knows.
But it does say in a timely fashion. I would assume, although
reading the language, that would mean whatever the President de-
cides is timely. Don't you agree?
Judge WEBSTER. I think it comes pretty close to that. But certain-
ly when there is substantial disagreement with that conclusion, at
some point that decision is reviewed. But at least initially it is his
call.
Chairman FASCELL. But the only place that a difference of opin-
ion could exist with respect to that decision is within the Adminis-
tration itself, because nobody else knows anything about it; isn't
that correct?
Judge WEBSTER. That is true, until it becomes known.
NSDD DIRECTION 286
Chairman FASCELL. Yes. Well, you know, we don't run any news-
papers. It is very tough for us to leak anything.
All right. Let's talk about NSDD Directive 286, which is an effort
to correct some of the things that have concerned Members of Con-
gress and an effort on the part of the Administration to tighten
down with respect to the question of oversight and knowledge and
consultation with regard to an operation by the intelligence com-
munity as distinguished from a normal intelligence-gathering func-
tion.
The directive is a directive issued by the President, is it not?
Judge WEBSTER. Yes, Mr. Chairman.
Chairman FASCELL. As you pointed out in your testimony, it cer-
tainly is different from a law.
Judge WEBSTER. That is correct, Mr. Chairman.
Chairman FASCELL. Those directives are normally highly classi-
fied, are they not?
Judge WEBSTER. Normally they are. This one is substantially de-
classified.
Chairman FASCELL. Well, that is so Congress would know you are
making changes?
Judge WEBSTER. That is correct.
Chairman FASCELL. And therefore you undertook to give this a
minimum of classification, to get the information out?
Judge WEBSTER. That is correct.
Chairman FASCELL. There is nothing wrong with that. I like that.
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But generally speaking, with regard to operations that would
occur under a national security directive, the directive itself would
be highly classified?
Judge WEBSTER. That is correct.
Chairman FASCELL. To whom, to what committee of the Con-
gress, would that directive normally go, if it goes to anybody?
Judge WEBSTER. It would normally go to the Intelligence Over-
sight Committees.
Chairman FASCELL. That is all; isn't that correct?
Judge WEBSTER. So far as I know, that is correct.
Chairman FASCELL. Now, the point you made about the fact that
since Congress knows the policy, you directed that statement to
this committee but you can enlarge it, since Congress knows what
the policy is, as I understand the presumption in your testimony,
why should Congress be concerned about. the implementation of the
policy?
Is that a fair restatement of what you are. saying?
Judge WEBSTER. I am not sure that it is, Mr. Chairman. You are
moving away from the NSDD onto a new subject. I want to be sure
of that.
Chairman FASCELL. I am just saying if the NSDD is simply a
means by which you carry out the implementation of policy, and
since the Congress knows about policy, we have all the information
we need, why are we so concerned about implementation of policy.
That is the way I read it. That is the impression I get from your
testimony.
Judge WEBSTER. No, I don't mean to imply that Congress has no
concern with the,implementation of the policy. I think it has every
right to be concerned and to be reassured through the Oversight
Committees that the implementation is taking place.
What I sought to say was that the NSDD goes beyond the exist-
ing statute and represents a presidential commitment to keep the
Congress informed in a way that the Congress will understand.
Chairman FASCELL. I wasn't speaking of only this NSDD, I am
just talking about NSDDs generally, when an.operation is about to
take effect or even a finding pursuant to an NSDD and whether or
not that in some way flows to the Congress, it is my understanding
that it does not.
I don't know how you get one of those, if it is highly classified. I
assume-I don't know; I am not on the Intelligence Committee-I
assume the Intelligence Committee, if they had some question
about it or got a rumor or got a tip or whatever, they could ask to
see one?
Judge WEBSTER. Yes, indeed.
Chairman FASCELL. But no other committee could have the bene-
fit of that request because they have no oversight jurisdiction; is
that correct?
Judge WEBSTER. That is correct, Mr. Chairman. But, of course,
we have the Appropriations Committee and the Armed Services
Committee. We have other committees who have monetary inter-
ests for which they require additional information. We try to
supply it so they can make sound judgments.
Chairman FASCELL. That is a pragmatic necessity, is it not?
Judge WEBSTER. That is correct.
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Chairman FASCELL. From the standpoint of the operation of the
department and the government. You better talk to the Appropria-
tions Committee and you better talk to Defense, because they are
your friends.
I have a lot more, but I will stop now and let Mr. Broomfield
take over for five minutes or so.
BROOMFIELD AMENDMENT (NOTIFYING ONLY FOUR MEMBERS OF
CONGRESS INSTEAD OF EIGHT)
Mr. BROOMFIELD. Thank you, Mr. Chairman.
Director Webster, I want to thank you for the words of support
in your testimony for my approach to congressional notification, es-
pecially for sensitive covert operations.
As you know, under the amendment I am going to be proposing
to this bill, H.R. 3822, in markup next week, the President could in
extraordinary circumstances notify only four leaders of Congress,
rather than eight Members of Congress as currently provided.
The President could also delay notification, but only in an emer-
gency constituting a grave and immediate threat to the national se-
curity. The President would also have to determine in writing that
the situation requires postponing notification.
Now, the first question I would like to ask you is: The adminis-
tration has certainly improved the notification process since you
became Director. Nevertheless, would the administration support
what I would consider a higher standard if it also gives the Presi-
dent some flexibility in difficult circumstances?
Judge WEBSTER. I am sure that your bill addresses the primary
concern of the Administration with respect to the flexibility that is
needed for those very rare circumstances.
I can't answer the constitutional question. I would have to defer
that to the Justice Department.
SITUATIONS THAT MAY REQUIRE INFORMATION BEING WITHHELD
Mr. BROOMFIELD. Mr. Director, what sort of circumstances would,
in your view, constitute an emergency in which notification could
be delayed under this approach?
Judge WEBSTER. Under the approach in your proposed bill?
Mr. BROOMFIELD. Yes.
Judge WEBSTER. Life-threatening situations, I believe, of major
proportions, would clearly fall within the provisions of the bill.
In trying to interpret it, I am unable to state with certainty
whether an individual hostage situation would be covered by it.
But certainly those situations in which major risk to American life
was at stake would fall, I believe, within the provisions of your bill
and could be justified on national security grounds.
Mr. BROOMFIELD. Approximately, if you know, how many inci-
dents in the last 12 years would come under this category?
Judge WEBSTER. It is my understanding that we have had only
three situations in which information has been withheld during
that period of time. All three related to situations in Iran-two sit-
uations at the time of the Iran hostage-taking a decade ago, and
more recently in the Iran-Contra matter.
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Mr. BROOMFIELD. So this whole argument is really centering
around-at least if you go back in history the last 12 or 15. years-
about three instances?
Judge WEBSTER. That is correct.
Mr. BROOMFIELD. How long, in your judgment, would it be justi-
fied to delay in such circumstances?
Judge WEBSTER. Well, it has been my view that one way to ap-
proach it is whether the need to inform becomes more compelling
than the protection of the lives or other national interests at stake.
I find it very difficult to measure it in terms of one day, two
days, three days. I can think of very few situations in which more
than a few days can be justified, but I can certainly think of at
least one example in which deference would have to be given to the
needs and wishes of foreign countries supplying important informa-
tion of a life-saving nature on the condition that no others be in-
formed, as was the case when the Canadians provided shelter for
our citizens in Iran.
Mr. BROOMFIELD. Judge Webster, do you agree it would be prefer-
able, in the extraordinary circumstances mentioned in the act, to
limit notification to the four congressional leaders of both Houses,
rather than to the eight at present?
Judge WEBSTER. With no disrespect for those who would be not
included, any reduction in the number of people who need to be in-
formed in order to provide the surrogate responsibility of Congress,
I think is desirable.
ELIMINATING THE 48-HOUR NOTIFICATION REQUIREMENT
Mr. BROOMFIELD. Now, the final question I want to ask you is,
you generally agree that this is a pretty darned good bill overall; is
that correct?
Judge WEBSTER. Overall, with the exception of this provision.
Mr. BROOMFIELD. If the committee or the Congress-and we will
probably have to try it on the Floor-if this 48-hour provision is
taken out, in your judgment would the Administration support the
bill?
Judge WEBSTER. I know of no reason why the Administration
would not support it. Indeed, General Powell's letter indicates that
this is the Administration's problem with the bill. All of the other
problems have been very constructively addressed in the process of
debate.
I would like to point out again how important I think the NSDD
provision is, which is not in the bill but which I think really is the
way you need to address these discretionary issues, the provision
that requires reassessing it by the senior members of the National
Security Council, the President, every ten days. That forces the
issue out.
I think it was in Iran-Contra where they put it away and didn't
look at it for ten months. This requires every ten days a consider-
ation of whether or not it is time to tell the Congress.
Mr. BROOMFIELD. Mr. Armacost, do you agree with the position of
the Administration that, if this 48-hour provision is deleted from
the bill, in all probability the President would support it?
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Mr. ARMACOST. I can't speak for the President, but I think the
senior advisors would support recommendation of the bill.
Mr. BROOMFIELD. I thank both of you for your testimony.
Chairman FASCELL. Mr. Hamilton?
Mr. HAMILTON. Thank you very much, Mr. Chairman. We are
very pleased to have these distinguished witnesses with us.
Director Webster, I noticed your emphasis several times on limit-
ed delay. You have that phrase in your statement when you are
speaking about the notification provision.
You have made changes and I think those changes have been sig-
nificant and helpful. The question is: if a President of the United
States wants to delay notice to the Congress under the present law
and under the NSDD that you have described and if he wants to
delay for a year, he could do so, could he not?
Judge WEBSTER. He could. That is theoretically possible for him
to do so. But I have never been able to formulate a circumstance
that would justify that kind of delay and I cannot conceive of the
process as laid down in the NSDD permitting that to happen, be-
cause your senior advisors have got to go along with that, including
the Director of Central Intelligence.
Mr. HAMILTON. I appreciate that, Mr. Director. But the fact is
the President did delay in one instance, in a very recent instance,
for ten months, and he only then made it known to us after a Leba-
nese newspaper revealed it.
So, if a President wants to delay under the present procedures,
he may do so, it seems to me, even with the review provision which
you have cited, and that causes me a great deal of concern.
I also wanted to check with you with regard to your handling of
the NSDDs. You said a moment ago, I think, that those are made
available to the Intelligence Committees. My recollection is that
they are not made available to the Intelligence Committees.
NSDD'S AVAILABILITY TO INTELLIGENCE COMMITTEES
Mr. ARMACOST. I think, as I understood it, Mr. Webster was re-
ferring to findings--
Mr. HAMILTON. Well, I may have misunderstood. My understand-
ing was that you said NSDDs were made available to the Intelli-
gence Committees. That may be the case now; it was not the case, I
believe, when I was on the Intelligence Committee.
Judge WEBSTER. Mr. Hamilton, you are probably correct on that,
and I may have misspoken.
Those are internal documents that relate to tasking of the Exec-
utive Branch of Government. But it is still my understanding that
key NSDDs that relate to foreign policies or intelligence matters
are communicated in one form or another to the Intelligence Com-
mittees, and I would be happy to respond more accurately on the
record.
ADMINISTRATION'S VIEW ON CONSTITUTIONAL POWERS OF THE
PRESIDENT
Mr. HAMILTON. Let me raise one other question. It is really the
Justice Department's position, but also it is my understanding of
the Administration's position is that it doesn't really matter what
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you put into this bill so far as notification is concerned, because the
President has an inherent constitutional right to withhold informa-
tion from the Congress. Now, that right may be more precisely de-
fined as under extraordinary circumstances or something of the
sort.
But if that is the position of the Administration, that a president,
no matter what this bill says, can withhold information and can
withhold notice, then this bill becomes almost a nullity, doesn't it,
given this view of the Administration?
Judge WEBSTER. I am trying to avoid getting into the constitu-
tional issue because I don't believe I am the proper person to raise
that issue.
There are other analogous situations, for instance, the Foreign
Intelligence Surveillance Act, in which the Chief Executive did not
acknowledge that he was bound to observe the requirements of the
Phizer Statute but agreed to do so, and his successor has followed
suit.
So I don't know what the position of the Administration would
be with respect to a constitutional issue if, in fact, the President
signed such a bill.
Mr. HAMILTON. Do you think I am misstating the Administra-
tion's position with regard to the President's constitutional powers
here?
Judge WEBSTER. I don't think you are misstating it as far as the
Administration's position with respect to his powers. I am not sure
you have accurately stated the Administration's position if the bill
is passed.
Mr. HAMILTON. One other thing. It seems to me we have to look
at this bill in the context in which it occurs. The context is that
over a period of time we have had deep suspicions in this body
about the operations of the Central Intelligence Agency-the resi-
due of Iran-Contra, the lack of trust and all the rest-and I must
say I think Mr. Broomfield is correct when he commends you for
the work you have done, and I commend the President for the
steps he has taken to try to correct these problems.
But what stands out, when you look through the steps you have
taken, is that all of them could be abolished with a signature from
the President. The NSDD expires when the President's term ex-
pires. He could change it tomorrow and not notify the Congress.
We wouldn't know anything about it. He could just completely
wipe out these changes that you have mentioned.
So while I commend the Administration for the steps that have
been taken, and you specifically for the steps you have taken, I am
bothered that these changes could just be abolished at will, without
the Congress ever knowing it.
In that situation and in that context, it seems to me that a law is
appropriate to deal with the problems we have had in the Congress
with your agency and with the Administration. Like so many
things that require a judgment, where you have to balance differ-
ent factors, on the one hand you have got the bill which does put
some restrictions on a President. He has got to notify within 48
hours in this particular provision that concerns us. You have some
harm-I suppose that some risk may be present from the fact that
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you make a disclosure to four or eight Members of the Congress.
But I must say that that risk appears to me to be extremely small.
If this bill provided that the administration has to notify 535
Members of the Congress, I would agree with you. But what you
are saying, in effect, is that we don't trust the leaders of the Con-
gress, we do not trust the Speaker of the House, the Majority and
Minority leaders, to keep information.
That is an extraordinary claim. We are not talking about the
rank and file Members of Congress here; we are talking about the
leadership of the Congress, and a very few of them. That is the
risk, on the one hand, and that has to be weighed against the value
of consultation and independent advice that the President would
receive if he gives prompt notice, prior notice in most cases, notice
within 48 hours.
I can recognize where there is a problem in balancing these
risks, if you would, but also benefits. I just come down strongly on
the side that the benefits, here outweigh what I see as small risks:
the risk of leaking to respected leaders of Congress and the risk of
the most minimal kind of restriction, it seems to me, on a Presi-
dent's flexibility, and that is that he notify within 48 hours.
JUDGE WEBSTER's POSITION ON 48-HOUR RULE
Judge WEBSTER. Mr. Chairman, if I may respond to Congressman
Hamilton's observations, I certainly do not, by my position on the
48-hour rule, mean to imply any lack of trust in the leadership of
Members who are presently covered by the statute. That is not my
concern, even though I don't read in the statute any limit on their
ability to further communicate anything that we communicate to
them. So there is that possibility there.
You do not really address, as I listen to you, the problem which
is real, that others supplying us information may condition that in-
formation on our not telling anyone else, as occurred in the Cana-
dian situation.
As I travel around the world-and I have visited 15 countries in
the last year-the one concern they have as they look at our
system is the ability to share information with us and under cir-
cumstances where it will not be communicated elsewhere. I don't
know what we do in that situation, which has already once oc-
curred, where a country has declined to let us communicate. What
do we do then?
Mr. HAMILTON. Mr. Director, I do not think we can let a third
country dictate the constitutional processes of the United States
Government.
If a third country is going to say to us, we are only going to coop-
erate with you under the following conditions, and these conditions
we think run contrary to our view of how our government ought to
operate, I don't think we can accept those kinds of conditions.
If the Canadian Government's position in the case you are saying
is we don't want to share information with the Congress-that was
the way the Canadian Government stated that position-I agree
with that position. I wouldn't want to share the information with
the entire Congress either.
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But that is not what we are asking for here. We are asking for
very, very limited notification by the President to a handful of
people. If the Canadian Government or any other government says
we are not going to give you this information because we don't
trust these four leaders of the Congress, or eight leaders of the
Congress, then I think that is a condition that is unacceptable to
us.
That is my attitude.
Chairman FASCELL. Mr. Leach.
Mr. LEACH. Well, thank you, Mr. Chairman.
Let me just begin with the preface I think I share as much as
any Member of Congress the concern that covert actions have been
a little overused in the last several decades, and I also believe we
ought to be pinpointing, as much as possible, accountability within
Government.
But I am troubled by aspects of the bill. The one is the 48-hour
notification, and I think Judge Webster has indicated several very
valid concerns; the second, which is a very interesting and novel
departure that I would like your comments on, involves presiden-
tial signatures.
There are two dimensions of it: one, there is a requirement that
the presidential finding be in writing and signed before action is
commenced, and, second, there is a requirement that a copy of the
finding bearing the president's signature be transmitted to Con-
gress at the time of the notification.
My concern is twofold on this signature issue. In the first in-
stance it sounds like a very realistic way of demanding accountabil-
ity within the Executive Branch, but on the second hand, because
some of these types of operations have a dimension that isn't a
happy one, that is, they are aggressive, you place the President of
the United States on line as personally being the initiator, not the
Government of the United States. It becomes a personalized act.
When you have a personalized act rather than a government act,
you might well have a temptation on the other side, if these things
ever become . public, that you will have a personal response.
Are you placing, for example, the President of the United States
of America in a more vulnerable position to assassination?
The second aspect is, you look at this very precise way of defin-
ing accountability with the presidential signatures and notification
to Congress-that is another place for the signatures to reside-I
think there would be a tendency of the Executive Branch to move
away from formulation in the formulation of policies, that is, there
would be a tendency where it would be obvious in everybody's
mind the Iran-Contra affair, where some of the discretion for
action was taken away from an institutional bureaucracy, the one
you headed, into a new bureaucracy within the National Security
Council, and partly with the understanding that people in that en-
vironment were told that we don't really want to know everything
that is happening, just to get the job done..
So what I am suggesting is do you have a problem with the sig-
nature element? Is that a real thing from your perspective, or is
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that a non-problem? And do you think that it should be modified in
any way?
Judge WEBSTER. We haven't taken a position on the signature
problem. I think that that was an outgrowth of the Iran-Contra
hearings and recommendations from various groups that looked at
it and wanted to make certain that the President was in fact
making a particular finding.
It is a step back from some of the procedures that have been in
place in the past to insulate the President from the kinds of ad-
verse circumstances to which you refer.
I am not aware that the President personally objects to those
provisions.
Mr. LEACH. Let me go on further.
One of the things that has been indicated by several people earli-
er, and I just think it can't be stressed enough, is this difference
between the President's policies and procedures. This is an effort to
change procedures, but the policies and the people have already
been changed, and I think they are more important in this particu-
lar instance.
Everyone I know of has the deepest respect for what you are
trying to do at the agency, and I think all of us have to acknowl-
edge that. But I think we should recognize that implicit in this bill
is something, a kind of presumption, that I am not convinced by.
The presumption is that because several Members of Congress will
be notified at some point in time, that these individual Members of
Congress will bring a great deal of perspective to bear that will be
very helpful.
It is my sense that realistically if one were to put a restraint on
covert operations, one would put a requirement, for example, that
the Departments of State and Defense would have to sign off at the
highest levels on each of these operations because that is where the
kabosh occurs.
I have never specifically known of an instance where the wisdom
of Congress has put a kabosh on these instances. Congress has a
tendency to be totally and utterly cooperative in these circum-
stances.
The signature issue, it strikes me, is one that is designed as a
personal embarrassment to the President, either in an internation-
al context or in a presidential campaign setting or partisan setting.
So I have concerns about that.
But most of all, I am concerned with the presumption that we
are dealing with a problem by simply notifying a few people. I have
never known that to occur.
Do you have any experience that would indicate to you that that
would likely deter serious decisionmaking within the Executive
Branch?
WOULD NOTIFYING A FEW LEADERS EFFECT THE DECISIONMAKING
PROCESS
Judge WEBSTER. Your question is whether notification--
Mr. LEACH. Yes.
Judge WEBSTER. In most situations I think we benefit from get-
ting reactions of members of the Oversight Committees to particu-
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lar findings. It is, in my view, a kind of insurance policy that what
we are doing makes some sense. I am not talking about potential
partisan differences, matters of disagreement with policies. But it
is often helpful and reassuring to know that the professionals have
not taken leave of the realities of day-to-day life, and I think the
committees. have a potential to make a substantial contribution
there.
Whether the one or two people who are given the notice supply
that additional wisdom is something I can't say, but at least we
would be required to expose them to a reaction and we would have
to listen to the reaction, although it might not change the result.
Mr. LEACH. Well, Mr. Armacost, as to some institutional checks
and balances that occur on covert decisionmaking within the Exec-
utive Branch, do you think it would be realistic to attempt to
modify this legislation in any way, to legislatively prescribe that
the Department of State be integrally involved in covert decision-
making?
Mr. ARMACOST. I believe, Mr. Leach, an earlier version of the
House bill did include an effort to specify the Executive agencies
that had to be involved in the decision, and we took exception to
that on constitutional grounds, and that it was inappropriate for
Congress to identify those elements within the Executive Branch
that had to be involved in a presidential decision.
I would only add that the changes now in the Executive Branch
procedures that Director Webster described I think have assured
against the kind of problem that occurred in the. Iran-Contra epi-
sode, where the Secretary of State and Secretary of Defense were
not involved subsequent to earlier deliberations, did not see the
finding in written form and therefore to some degree lost the op-
portunity to inject balance and foreign policy contributions as the
program was implemented.
We do believe the procedures have had a salutary effect.
Mr. LEACH. I would just ask for one request, if I could. Could you
respond in writing to the committee on your consideration of the
signature issue and whether or not you believe it should be modi-
fied in any way?
Mr. ARMACOST. Surely.
Judge WEBSTER. We will do that.l
Chairman FASCELL. Mr. Solarz.
NUMBER OF EXECUTIVE BRANCH PEOPLE INVOLVED IN ISSUING A
FINDING
Mr. SOLARZ. Thank you very much, Mr. Chairman.
Judge Webster, are you in a position to let us know, generally
speaking, how many people within the Executive Branch are in-
volved in the process of advising the President with respect to
whether or not to issue a finding, and how many people in the Ex-
ecutive Branch, generally speaking, are aware that a particular
finding has been issued?
Judge WEBSTER. If I can walk you through a typical example,
normally the covert actions do not originate within the Central In-
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telligence Agency. They are usually requested, although not in spe-
cifics, through another branch, but most likely the State Depart-
ment, when normal overt foreign policy efforts are not adequate to
achieve the foreign policy objective.
We then internally develop some ideas and stratagems which are
vented through a subgroup of the National Security Council called
the Policy Coordination Group, the PCG, which includes senior
members of key departments, Defense, State and so on. That is a
very small group. Then it comes back for a refining. A finding is
prepared within the Central Intelligence Agency and is submitted
to the National Security Council Planning Group, consisting of the
heads of the major departments.
All of these are people who know, if that is what you are saying.
Mr. SOLARZ. That includes the President, Vice President, Secre-
tary of State, Secretary of Defense, the DCI--
Judge WEBSTER. Joint Chiefs of Staff and Attorney General
and--
Mr. SOLARZ. So at a minimum they are all aware that a finding
has been issued, if it has been issued?
Judge WEBSTER. That is correct.
Mr. SOLARZ. Mr. Armacost, let me ask you, is it your impression
that when a finding is under consideration-and the Secretary of
State is, of course, a part of this National Security, Planning
Group-is it generally his practice when he goes back to the De-
partment to consult with the key people within the State Depart-
ment who would be in a position to bring relevant judgment to
bear on the merit of this proposed finding, in order to determine
whether they think this is in the best interests of the country? Or
does he handle this exclusively by himself, without any effort what-
soever to solicit advice from relevant people within the Depart-
ment?
Mr. ARMACOST. No, no. He would normally consult a handful of
people.
Mr. SOLARZ. So if the Secretary of State consults a handful of
people, the Secretary of Defense does also, and so on and so forth,
which means that exclusive of who knows or who doesn't know in
the Congress, there is a not insubstantial number of people within
the Executive Branch who are aware of these findings.
Judge Webster, based on your experience, do you think that the
Executive Branch is from time to time responsible for leaks con-
cerning covert activities?
Judge WEBSTER. Well--
Mr. SOLARZ. Or do you think the leaks that have taken place em-
anate only from Congress?
Judge WEBSTER. Well, clearly the Executive Branch has supplied
a number of leakers, at least equal to those in Congress.
If you ask it with respect to covert actions, I have no specific
knowledge that comes to me at the moment. I would not be sur-
prised to find that there have been those on the Executive Branch
who have given away some information about covert actions.
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Mr. SOLARZ. I understand that your predecessor, Mr. Casey, indi-
cated in his view that the Executive Branch was responsible for
many leaks in the House Intelligence Committee, which had an im-
peccable record, I am told, in not divulging this information in an
unauthorized fashion.
But I would like to ask you a question about what seems to me to
be the gravamen of your objection to this bill. You point to the
problem that might be created if a foreign government whose coop-
eration we seek in some kind of covert activity were to say to us
that its willingness to cooperate is contingent upon our not notify-
ing the Congress, even though under this legislation congressional
notification is limited to a handful of congressional leaders. There-
fore, this legislation might potentially render the cooperation of
this country impossible to obtain.
The problem I have with that argument, which has been ex-
plained very eloquently by Mr. Hamilton, is that we would be per-
mitting a foreign government to determine how we conduct our in-
ternal procedures.
But supposing that same government said to us, "Look, the State
Department leaks like a sieve. There are dozens of examples of re-
ports in the press that were supposed to be confidential that come
from the State Department. We are willing to cooperate with you
but only if the Secretary of State is cut out of the loop, because if
he is included, he is going to consult with people in his Department
and information will be leaked." Maybe the same thing will be said
one day about the Secretary of Defense, and maybe there are leaks
from the office of the Vice President. I have even heard it said that
from time to time there are leaks on the NSC.
Now, under the logic which you have advanced against this bill,
which would require consultation with a limited number of Mem-
bers of Congress, we would, by the same logic, have to cut out of
the loop any of the key people in the Executive Branch the foreign
government objected to.
I would like to know what you would do under those circum-
stances. Would you say to Canada or some other country that in-
sisted we not inform the Secretary of State or the Secretary of De-
fense or the NSC or the Vice President that we will accept their
conditions? Would you tell them that is not how we do business
and we can't make a decision like this without the input from
these people?
FOREIGN GOVERNMENT'S INSISTING NO ONE ELSE BE CONSULTED
Judge WEBSTER. Well, I am sure the latter is what we would
have to do.
We are dealing with a very small, narrow set of circumstances,
which have only occurred three times in terms of delayed notice
and one time with respect to a country's demand for not sharing
information.
We are successful where we need to be in communicating infor-
mation to the Secretary of State directly under circumstances in
which he must necessarily limit further dissemination, and we
have done that. I suppose that that would be the answer to the ob-
jection.
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I have trouble dealing with hypotheticals--
Mr. SOLARZ. If this legislation were enacted, couldn't you give the
same answer to such an objection with respect to informing the
Congress?
Judge WEBSTER. We could, Mr. Solarz. It would still leave open
two questions: one, whether the foreign government would accept
that-and, of course, what they are doing is offering help and re-
fusing that help if we don't comply with their rules, so it is not a
question of having them dictate our procedures; and the other one
is a constitutional issue which I prefer not to address myself, but it
is still there.
CONSTITUTIONAL ISSUE'S INVOLVED
Mr. SOLARZ. I think the constitutional issue is a very important
one and I hate to see us get involved in the same kind of situation
we are involved in with the War Powers Act where we have legis-
lation on the books and the Congress expects it to be adhered to
but the President takes the position that it is unconstitutional and
doesn't carry it out.
Would you or any of your legal advisors present be in a position
to let us know whether or not, if this legislation in its current form
is enacted, the President would comply with the law by notifying
the congressional leadership specified in the bill within 48 hours
that special activities were underway or were contemplated?
Judge WEBSTER. I think that entire question has to be referred to
the Justice Department, Mr. Solarz. I have no personal knowledge
of it.
Mr. SOLARZ. Mr. Chairman, I think this question, which was also
raised by Mr. Hamilton, is a very important one, and I would hope
that we could arrange to get an answer from the Administration
whether it is from Justice or whomever, before we proceed. I think
it is essential to know that there would be presidential compliance
with the legislation, and if there isn't going to be presidential com-
pliance with the legislation, then perhaps we need to consider some
provisions designed to elicit it.
Chairman FASCELL. Well, if the gentleman will allow me to re-
spond, if we don't have something from Justice we will certainly
seek it. But nevertheless I would be guided by the constitutional
requirement that the President faithfully execute the law.
Mr. SOLARZ. Judge Webster, can you undertake to use your influ-
ence to get us a response from the Administration on this?
We want to know whether the President would carry out the law
or whether he would refuse to on the grounds that it violates his
constitutional prerogative.
Mr. HYDE. Would the gentleman yield?
Since our Supreme Court does not give advisory positions, I
doubt whether the White House would be similarly bound.
Judge WEBSTER. I am not sure what kind of influence I have in
this area, so I think the Administration will be made aware of your
concern about this issue.
The President has indicated that lack of flexibility would not be
acceptable to him in terms of addressing a bill presented for his
signature. But I can't take it beyond that point.
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Mr. ARMACOST. Could I comment?
I hope the issue wouldn't be phrased as one on withholding infor-
mation from Congress. I think, as Mr. Hamilton was saying, there
is an inherent tension between your requirements for accountabil-
ity in this area and the requirements that the President conduct
foreign policy, and we have been trying to find some practical way
of managing a very sensitive subject.
Nobody on our side rejects the notion of timely notification. The
question is whether a rigid 48-hour rule should apply in every in-
stance, and whether there can be foreseen occasions, in extreme
cases where that should not be the rule. I think that is the ques-
tion.
I think honorable people will disagree on whether that is the line
we ought to strike. It is whether or not the 48-hour rule is appro-
priate.
Mr. SOLARZ. I think the reason we have a 48-hour rule is that
timely notification in the Iran-Contra affair was apparently defined
to be of an indefinite duration. It went on not for hours or days or
weeks but for months, and could have gone on for years. I think
that is the problem we have.
One final question, Mr. Chairman.
Other than the effort to rescue the hostages in Iran, which has
been referred to under the Carter Administration in your testimo-
ny, are you in a position to give us any examples, in closed session
if necessary, of any covert activities in which we have engaged over
the last eight years, which we would not have been able to have
engaged in if this proposed legislation had been the law of the land
and notification of the finding had been obligatory to the congres-
sional leadership within 48 hours?
Judge WEBSTER. I think the answer has to be no, those are the
only three situations in which notice I think well within the 48-
hour period was not given to the Congress.
Mr. Soi.Aaz. Thank you very much.
Chairman FASCELL. I would say to the gentleman from New York
that we have nothing in writing in the Foreign Affairs Committee.
I don't know whether this is still the policy of the administra-
tion, but on May 10th Colin Powell, Assistant to the President for
National Security Affairs, wrote to the Chairman of the Intelli-
gence Committee, with attachments which included the definition
of "covert action" and some amendments to the bill that they sug-
gested.
In that letter in part he says,
It should be well understood that the President's senior advisors will recommend
a veto of legislation containing such an absolute reporting requirement because
such a requirement encroaches upon the President's constitutional authority.
I don't know whether they talked to the White House. lawyer or
whether they talked to the Justice Department, but be that as it
may, that is the position they have taken. I don't know how legal it
is.
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Without objection, we will put the full letter in the record to go
with the attachment so that everybody can read it.'
CONSTITUTIONAL QUESTION OF THE LEGISLATION
Chairman FASCELL. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
Judge Webster, this statement is contained in the Congressional
Record in debating this companion legislation in the Senate, and
this is by Senator Cohen, who is the chief sponsor, although Sena-
tor Boren's name may be first, but as I read this, Senator Cohen is
the driving force.
Director Webster has recently testified before the House Intelligence Committee
that the notice requirements in S. 1721 do not, in and of themselves, place undue
burdens on the intelligence community. Furthermore, Director Webster has not en-
dorsed a Justice Department statutory and constitutional interpretation.
Is that a correct statement?
Judge WEBSTER. I think, if not inaccurate, it is misleading be-
cause, first of all, I have avoided a participation in the constitution-
al issue because I believe that should be addressed by the Justice
Department. Indeed, it was addressed in a letter to the House Per-
manent Select Committee on Intelligence in a letter dated June 9,
1987. I don't know whether it is a part of this committee or not,
but I have a copy of that.
On the issue of the 48-hour rule, I have pointed out in testimony
the same kind of situations that would be very difficult for us if we
were confronted with an outside offer of help which was condi-
tioned upon giving notice of the kind that is contemplated by the
bill. We have had very few situations in our experience where we
could not provide that 48-hour notice.
It has been my position that, with the constitutional question
creating unnecessary tension between the Congress and the Chief
Executive, and the Chief Executive publishing a national security
decision directive which represents his commitment to make notice
within 48 hours except in those very extraordinary circumstances
and to review any decision to delay notice to ten days, that legisla-
tion in this area is not necessary.
That has been my position.
48-HOUR PERIOD FOR NOTIFICATION
Mr. HYDE. I quote further from the distinguished Senator from
Maine,
The only thing we have added is the 48-hour notice. I picked that 48-hour period,
as I indicated before, because Mr. Gates, Mr. Webster and Mr. McMann have indi-
cated that is entirely reasonable. That is the practice. That is why we put it in the
bill.
I assume, from your testimony today and the testimony I have
heard you give before, that you do not agree that 48 hours as an
inflexible statutory mandate is something that you support.
Judge WEBSTER. That is correct.
Mr. HYDE. Now, let me read a couple of sentences to both of you
witnesses, Mr. Armacost and Judge Webster.
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As the committee knows, covert activities have become numerous and widespread,
practically constituting a routine component of our foreign policy.
Do you agree with that, Mr. Armacost?
USE OF COVERT ACTIVITIES
Mr. ARMACOST. No, I don't, nor should they be. They should be
an unusual instrument that is employed when there are special cir-
cumstances requiring plausible deniability.
Mr. HYDE. I understand that. But there is a flat statement made
by a very distinguished witness who says that "covert activities
have become numerous and widespread, practically constituting a
routine component of our foreign policy."
I say that is way overstated. Would you agree with that?
Mr. ARMACOST. I would.
Judge WEBSTER. Yes, I would agree with that.
Mr. HYDE. On this sentence, "I believe that covert activities have
harmed this country more than they have helped us," is it possible
to make a judgment like that and, if so, would you agree with that,
bearing in mind that our successful covert activities never get pub-
licized or we learn about it years later, if at all?
Judge WEBSTER. There is some truth to the statement that when
our covert actions fail, they are likely to cause a good deal of harm
because of the reaction by the press and by the Congress and other
parts of the world.
This is not to say, however, that it is not necessary for the
United States to have such a capability. In many parts of the world
we work with countries and with groups within countries to which,
from the perspective of those friends, it is important that the role
of the United States be identified, for very legitimate reasons.
So it is important that we have that capability in order to supply
aid to our friends in implementation of our foreign policy.
CONSTITUTIONALITY OF BILL
Mr. HYDE. I see my friend, Mr. Hamilton, is leaving. I wish he
wouldn't.
Lee, I am going to talk about something you said and I would
like to have you here.
Mr. Hamilton said that we can't let a third country dictate the
constitutional processes of our government. That assumes that this
bill is constitutional. I don't assume that at all. I think it is very
questionable that it is constitutional.
I would like to give you a statement made by Eugene Rostow,
Sterling professor of law emeritus and senior research scholar at
Yale Law School, who is known to all of us.
He quoted Congressman Hamilton and said he was commendable
and frank in his testimony on February 24th of this year when he
said, and I quote,
Now we are told by the Administration that "timely" means whatever the Presi-
dent says it means and that he can withhold notice as long as he wants. If we let
this interpretation stand, an interpretation that says that the President can with-
hold information from Congress at his discretion, then Congress will have weakened
seriously its oversight capabilities and consented to a basic shift of power away from
Congress to the Executive. Once this power to withhold information from Congress
is granted to the President, how can it then be maintained that Congress stands
equal in power to the President?
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Now, Professor Rostow responds to that,
But Congress and the President are not constitutionally equal in power with re-
spect to all aspects of the making and conduct of foreign policy. Congress has enu-
merated legislative powers. The President, the executive power. In some areas Con-
gress is clearly supreme; in others, the President. Only Congress can appropriate
money, declare war and enact laws. Only the President can nominate and remove
high officials, recognize foreign governments and conduct foreign relations. (What
ever happened to the Logan Act?) In all areas, however, cooperation between Con-
gress and the President is necessary if our complicated government is to function.
But cooperation is not. a simple rule of thumb equally applicable in every case and
it is not a matter for legislative timetables. The timing and sequence of that coop-
eration must be flexible and responsive to circumstance. Its success depends ulti-
mately on the political insight and intuition of the chief participants in the process.
Would either of you or both of you agree with that statement?
Mr. ARMACOST. I certainly would.
Judge WEBSTER. I have no trouble with it.
Mr. HYDE. Now, I want to--
Mr. HAMILTON. I wonder why they are so anxious to comment on
that constitutional question when they wouldn't comment on the
constitutionality of the bill? [Laughter.]
Mr. HYDE. Perhaps I asked a leading question. [Laughter.]
I want to pose a hypothetical that is very important and I want
to insist that it is hypothetical, and if I name countries, these are
absolutely fictional, not true, hypothetical, but to give some sub-
stance to my hypothetical I must do that.
Now, it is learned through a highly placed source that the Irani-
an ambassador to the U.N.-I insist this is fictional-has a cache of
a biological agent that, if released, will destroy New York City and
-six million people. The Tunisian delegation has access to the Irani-
an ambassador-fictional, again, I insist-and his quarters, and has
indicated a willingness to take whatever steps are necessary to
neutralize the biological agent but requires ongoing intelligence
and logistic support from the FBI and the CIA.
The Tunisian ambassador insists no one be notified beyond the
President and the Director of the FBI as to what is underway, and
a leak of this would panic a whole nation.
What do you tell the Tunisian ambassador? Do you tell him,
sorry, Mr. Ambassador, we have to tell at least Speaker Wright
and Senator Byrd about this within 48 hours, we have got to do it,
that is the law, we don't want to be impeached and don't want to
be a scofflaw, so just what do you do?
How do you deal with it? You can't under this law. And if this is
the law, the cooperation of other countries, indispensable to some-
times very life-threatening situations, will be forfeit. That is why it
is bad and it is dangerous.
I just throw that hypothetical at you. You don't have to deal
with it. I am sorry I mentioned the names of countries; it could
have been the PLO or Syria or anything. But it can happen, be-
cause biological warfare is a reality.
But I must say, we are playing with the very existence of our
country by forcing, into a mechanical mold of 48 hours, the Presi-
dent to do something that he may not be able to do because we
have to work with third-party countries. We have to work with
them; they may be the only people available.
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This is very foolish legislation for our own interest. There is so
much more, the constitutional issues are profound and important
and so misunderstood.
The Chairman said if you don't own a newspaper, you can't leak.
I have just read Woodward's last book and tried to figure out how
many hundreds of leaks are in there. Of course, "none of them
came from Congress." We have serious problems in this country,
and overreacting to Iran-Contra to force President Dukakis, Presi-
dent Jackson or President Bush into 48-hour notification, no
matter what the covert activity is, is self-defeating, I think.
Thank you, though, for listening, and I know you are pleased you
don't have to answer that hypothetical. I will ask Mr. Clifford the
answer to that when his turn comes.
Thank you.
Chairman FASCELL. Mr. Director, you made reference to a letter
from the Justice Department to the Permanent House Select Com-
mittee dated June 9, 1987, which addressed the constitutional issue.
We are not the recipients of that letter and don't have the benefit
of their wisdom. If you have got a copy of that letter, it would be
nice for us to have it for the record, although I at least strongly
disagree with it.
Judge WEBSTER. I will be happy to leave one with you or supply
one to you.
Chairman FASCELL. Thank you. Otherwise, we would have to
spend a lot of time getting a copy of a letter that wasn't addressed
to us, and we appreciate your cooperation.
[The information follows:]
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Office of Legislative and Intergovernmental Affair:
Representative Matthew F. McHugh
Chairman, Subcommittee on Legislation of the
House Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This letter presents the views of the Department of -Justice on
H.R. 1013, a bill relating to the system of congressional oversight
of intelligence activities. The Department of Justice opposes
enactment.of this legislation. because we believe it would unconsti-
tutionally intrude on the President's authority to conduct the
foreign relations of the United States.
H.R. 1013 would make substantial revisions of both the con-
gressional reporting requirements of the National Security Act and
the Hughes-Ryan Amendment. Besides appearing to broaden the con-
gressional notification requirements, section 3 of H.R.,1013 would
delete from section 501(a) of the National Security Act the present
express acknowledgment that the Act imposes reporting requirements
on the President only insofar as the requirements are consistent
with lis authorities and duties under the United States Constitu-
tion. It would also delete the Act's provision acknowledging the
1 Section 501(a) presently provides (emphasis added):
To the extent consistent with all applicable
authorities and duties, including those conferred by
the Constitution upon the i executive and legislative
branches of the Government, and to the extent
consistent with due regard for the protection from
unauthorized disclosure of classified information
and information relating to intelligence sources and
methods, the Director of Central Intelligence and
the heads of all departments, agencies, and other
entities of the United States involved in
intelligence activities shall --
(1) keep the Select Committee on Intelligence of
the Senate and the Permanent SelectCommt:tee on
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President's independent constitutional authority, namely section
)01(b), which provides for presidential discretion in deferring.
eotice to Cgngress concerning exceptionally sensitive intelligence
activities. In place of the current Act's provision acknowledging
the President's authority to provide 'timely notice' in such sensi-
tive situations, section 3 of H.R. 1013 would purport to require
that such notice be given within 48 hours after the initiation of
such operations.
Section 2 of R.R. 1013 goes even further with respect to
operations involving the Central Intelligence Agency. It would
purport to require that copies of Hughes-Ryan 'findings' be pro-
vided to certain executive branch officials and that this be dose
before the initiation of any operation requiring such findings.
1 Cont. Intelligence of the House of
Representatives . fully and currently informed
of all intelligence activities which are the
responsibility of, are engaged in by, or are
carried out for or an behalf of, any department,
agency, or entity of the United States, including
any significant anticipated intelligence activity,
except that (A) the foregoing provision shall not
require approval of the intelligence committees as a
condition precedent to the initiation of any such
anticipated intelligence activity, and (B) if the'
President determines it is essential to limit prior
notice to meet extraordinary circumstances affecting
vital interests of the United States, 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 the majority and minority
leaders of the Senate.
Needless to say, deleting the underscored language would be only
symbolic and could not alter the constitutional rights or duties of
either branch.
2 Section 501(b) currently provides (emphasis added):
The President shalt ll fully inform the intelligence
committees in a time fashion of intelligence
operations in foreign countries; other than
activities intended solely for obtaining necessary
intelligence, for which prior notice was not given
under subsection (a) of this section and shall
provide a statement of the reasons for not giving
prior notice.
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50
While the 48-hour provision of the new section 501(e) of the
vational Security Act would apply to congressional notification ofJe "Hughes-Ryan operations, this unprecedented requirement of
tification of subordinate executive branch officials appears to
impose an absolute rule of prior notice.
In keeping with the long-standing view of Presidents of every
Administration that has considered this issue, the Department
believes that these provisions of H.R. 1013 are unconstitutional.
As you know, these same issues were.the subject of thorough debate
and extensive negotiation in 1980, when Congress was considering
proposals for intelligence oversight legislation. It was the
position of the Administration then, as-it is of this Administra-
tion now, that there may be exceptional occasions on which the
President's exclusive and inalienable constitutional duties in the
area of foreign affairs would preclude him from giving prior notice
of very sensitive intelligence-related operations.
This Administration, like prior Administrations, is anxious to
work with Congress in devising arrangements to satisfy the legiti-
mate interests in legislative oversight. But the executive branch
in 1980 recognized that there is a point beyond which the Consti-
tution simply would not permit congressional encumbering of the
President's ability to initiate, direct, and control the sensitive
national security activities at issue here.- Testifying. before the
Senate Select Committee in 1980, then CIA Director Stansfield
Turner emphatically pointed out that the prior notification then
being considered "would amount to excessive intrusion by the
.ongress into the President's exercise of his powers under the
'onstitution." See National Intelligence Act of 1980: Hearings
before the Senate Select Committee on Intelligence, 96th Cong., 2d
Sess. 17 (1980).
The Constitution confers on the President the authority and
duty to conduct the foreign relations of the United States. Covert
intelligence-related operations in foreign countries are among the
3 Cont. this chapter or any other Act may be
expended by or on behalf of the Central-
Intelligence Agency for . operations. in foreign
countries; other than activities, intended
solely for obtaining-necessary intelligence,
unless and until the President finds that each
such operation is important to the national
security of the United States. Each such
operation shall be considered a significant
anticipated intelligence activity for the
purpose of section 413 of title 50 (i.e?
section 501 of the National Security Actg.
4 Section 2 of N.R. 1013 also requires that the national security
finding be in writing. We. do not, however, interpret this to mean
that-signed copies of the finding-.must.be provided to.Congress or
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most sensitive and vital aspects of this duty, and they lie at the
very core of the President's Article II responsibilities. In this
'ttter the Department will not seek to detail all the authorities
)d precedents relevant to our conclusion that an absolute prior
_.utice requirement of the kind proposed in H.R. 3013 would be
unconstitutional. In summary, however, the Department believes
that the Constitution, as confirmed by historical practice and
clear statements of the United States Supreme Court, leaves the
conduct of foreign relations, which must include foreign intelli-
gence operations, to the President except insofar as the Consti-
tution gives specific tasks to the Congress.
The principal source for the President's wide and inherent
discretion to act for the nation in foreign affairs is section 1 of
article II of the Constitution wherein it is stated: 'The execu-
tive Power shall be vested in a President of the United States of
America.' The clause has long been held to confer on the Presi-
dent plenary authority to represent the United States and to pursue
its interests outside the borders of the country, 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. The President's
executive power includes all the discretion traditionally available
to any sovereign in its external relations, except insofar as the
Constitution places that discretion in another branch of the
government.
Before the Constitution was ratified, Alexander Hamilton
xplained in The Federalist why the President's executive power
Duld include the conduct of foreign policy: 'The essence of the
Legislative authority is to enact laws, or, in other words to
prescribe rules for the regulation of the society; while the
execution of the laws and the employment of the common strength,
either for this purpose or for the common defense, seem to com-
prise all the functions of the executive magistrate.' See The
Federalist No. 75, at 450 (A. Hamilton) (C. Rossiter ed. 1961). By
recognizing this fundamental distinction between 'prescribing rules
for the regulation of the society' and 'employing the common
strength for the common defense' the Framers made clear that the
Constitution gave to Congress only those powers in the area of
foreign affairs that directly involve the exercise of legal
authority over American citizens. As to other matters in which the
nation acts as a sovereign entity in relation to outsiders, the
Constitution delegates the necessary authority to the President in
the form of the 'executive Power.'
The authority of the President to conduct foreign relations
va first asserted by George Washington and acknowledged by the
First Congress. Without consulting Congress, President Washington
determined that the United States would remain neutral in the war
between France and Great Britain. The Supreme Court and Congress,
A Cont. to subordinate executive branch officials.
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too, have recognized the President's'broad discretion to act on
."is own initiative in the field of foreign affairs. In the
'ading case, United States v. Curtiss-Wrigh Lxoort Corv., 299
1i. 304 (1936 , the Court drew a sharp distinction between the
President's relatively limited inherent powers to act in the
domestic sphere and his far-reaching discretion to act on his own
authority in managing the external relations of the country. The
Supreme Court emphatically declared that this discretion derives
from the Constitution itself, stating that 'the President [is] the
sole organ of the federal government in the field of international
relations -- a Dover which does-not require as a basis for its
exercise an act of Congress.' 299 U.S. at 319-320 (emphasis added).
Moreover, as the Curtiss-Wright Court noted, the Senate Committee
on Foreign Relations acknowledged this principle at an early date
in our history, stating that 'the President is the constitutional
representative of the united States with regard to foreign na-
tions.' The Committee also noted 'that [the President's consti-
tutional) responsibility is the surest pledge for the faithful
discharge of his duty' and the Committee believed that 'interfer-
ence of the Senate in the direction of foreign negotiations (is)
calculated to diminish that responsibility and thereby to impair
the best security for the national safety.' 299 U.S. at 319
(quoting U.S. Senate, Reports, Committee on Foreign Relations, vol.
8, . 24 (Feb. 15, 1816)). Curtiss-Wright thus confirms the
Prepsident's inherent Article II authority to engage in a wide
range of extraterritorial foreign policy initiatives, including
intelligence activities -- an authority that derives from the
'onstitution, not from the passage of specific authorizing
egislation.
Despite this vide-ranging authority, Presidents have been
careful to consult regularly with Congress to seek support and
counsel in matters of foreign affairs. Moreover, we recognize that
the President's authority over foreign policy, precisely because
its nature requires that it be wide and relatively unconfined by
preexisting constraints, is inevitably somewhat ill-defined at the
margins. Whatever questions may arise at the outer reaches of his
power, however, the conduct of secret negotiations and intelligence
operations lies at the very heart of the President's executive
power. The Supreme Court's Curtiss-Wright decision itself notes
the President's exclusive power to negotiate on behalf of the
United States. The Supreme Court has also, and more recently,
emphasized that this core presidential function is by no means
limited to matters directly involving treaties. In United States
v. Nixon, 418 U.S. 683 (1974), the Court invoked the basic Curtiss-
Wright distinction between the domestic and international contexts
to explain its rejection of President Nixon's claim of an absolute
privilege of confidentiality for all communications between him
and his advisors. While rejecting this sweeping and undifferen-
tiated claim of executive privilege as applied to communications
involving domestic affairs, the Court repeatedly and emphatically
stressed that military or diplomatic secrets are in a different
category: such secrets are intimately linked to the President's
krticle II duties, where the 'courts have traditionally shown the
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mo t fsr n to Presidential responsibilities.' 418 V.S. at
30 empha s added).
We are unaware of any provision of the Constitution that
affirmatively authorizes Congress to have the role provided in H.R.
1013. Congress' implied authority to oversee the activities of
executive branch agencies is grounded on Congress' need for infor-
mation to consider and enact needful and appropriate legislation.
Congress in the performance of this legislative function, however,
does not require detailed knowledge of virtually all intelligence
activities particularly prior to initiation. Oversight of ongoing
operations has the potential to interfere with the ability of the
President to discharge the duties imposed on him by the Consti-
tution. Accordingly, the President must retain his constitutional
discretion to decide whether prior notice, in certain exceptional
circumstances, is not appropriate.
Since the current legislation was adopted in 1980, of course,
the President has provided prior notice of covert operations in
virtually every case. Moreover, in acting to implement the recom-
mendations of the Tower Board, the President recently reaffirmed
his committment to the current statutory scheme of notification.
See the text of National Security Decision Directive No. 266, which
accompanied the President's message to Congress of March 31, 1987.
The Department of Justice also objects to Section 2 of H.R.
2013, which would purport to require that the President furnish
copies of his national security findings to the Vice President, the
Secretary of State, the Secretary of Defense, and the Director of
Central intelligence before the initiation of any operation
requiring a Hughes-Ryan finding. Like the congressional prior
notice requirements, though for somewhat different reasons, this
provision is inconsistent with the President's constitutional
authority. By requiring certain of the President's subordinates to
be notified of covert actions before they occur, this proposal
would infringe on the President's prerogatives as head of a unitary
executive branch to exercise. full discretion in consulting and
communicating with his subordinates.
The Constitution places the whole executive power in the hands
of the President. in contrast to political systems that employ
some form of cabinet government, our Constitution is based on the
principle of the unitary executive. It is worth emphasizing that
the Framers deliberately chose this principle and deliberately
ee ed the cabinet (or privy council) alternative, with which
they were quite familiar from British practice and from the Consti-
tutions of most of the original states. Indeed Article II, section
2, of the Constitution provides that the President 'Pay require the
Opinion, in writing, of the principal Officer in each of the execu-
tive Departments, upon any Subject relating to the Duties of their
respective Offices' (emphasis added). Plainly, it is the President
who decides when he requires the advice of others in the Executive
Branch and which persons he will consult. Neither his authority to
seek advice from such officials as he may choose nor the manner in
which he makes such consultations may be circumscribed by Congress.
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The Framers' two main reasons for choosing to create a unitary
xecutive were complementary and mutually reinforcing. First,
khey thought that for the executive branch, in sharp contrast to
the legislative branch, rapid and decisive decision-making is suf-
ficiently important that it outweighs the inevitably concomitant
danger that rash or ill-considered actions will be undertaken. See-
he Federalist No. 70, at 423-24 (A. Hamilton) (C. Rossiter ed.
196. nd, the Framers believed that unity i n the executive
would promote what today we call 'accountability." As Alexander
Hamilton pointed out, the more that the executive power is watered
down and distributed among various persons, the easier it is for
everyone concerned to avoid the blame for bad actions taken or for
desirable actions left undone. See Tge Federalist No. 70, at 427
(A. Hamilton) (C. Rossiter ed. 1961). Certainly, it would be
unwise, as well as unconstitutional, to move our governmental
institutions in a direction that could lead to less presidential
accountability.
Of course, we acknowledge that consultation with the members
of the National Secugity Council would almosteelways be a prudent
presidential policy. We object only to undertaking to make such
consultation a legal obligation. As a constitutional matter, there
is no difference between the subordinate officials listed in this
bill and thousands of other executive branch officers. If one
statute could require the President to notify any of them of his
national security findings prior to initiating a covert operation,
another statute could just as easily require him to notify other
subordinates, or all of them. Thus, given the Constitution's?
creation of a unitary executive, the cabinet notification require-
ments in section 2 of this bill, like the congressional no.tif.ica-
tion requirements discussed earlier, are inconsistent with Article
II of the Constitution.
5 The Framers also believed that placing the whole of the
executive power in one man was usefully 'conducive' to secrecy -- a
consideration directly relevant to H.R. 1013. See The Federalist
No. 70, at 424 (A. Hamilton) (C. Rossiter ed. 1961).
6 Indeed, in keeping with past practice, the President has
directed that "proposed covert actions . be coordinated with
NSC participants, including the Attorney General,--and their respec-
tive recommendations communicated to the President . . . .' NSDD
266 (March 31, 1987).
7 The requirement in section 2 of H.R.1013, that the national
security finding mandated by the Hughes-Ryan Amendment be in
writing also raises questions insofar as it has some potential to
interfere with the President's discretion in choosing how to run
his own office. On the other hand, because this provision does
serve the legitimate purpose of facilitating after-the-fact
congressional oversight, it is the least objectionable feature of
N.R. 1013.
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In closing, the Department notes that when proposals similar
to those in B.R. 1013 were introduced in 1979 and 1980, it was
recognized that no president has either the right or the paver-to
alter the Constitution's allocation of powers among the institu-
tions of our government. This view was correct then and is correct
now.
The Office of Management and Budget has advised this Depart-
ment that it has no objection to the submission of this report. to
Congress.
Assistant Attorney General
Office of Legislative Affairs
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Chairman FASCELL. Mr. Berman?
Mr. BERMAN. Thank you, Mr. Chairman.
Judge Webster, I have a number of different areas I would like
to cover in my five minutes and so, understanding that, I hope you
will bear with me and I will try to be brief.
First I would like to pursue this question of the constitutional
issue raised by the Administration.
Is there any question but that it is appropriate in the Adminis-
tration's view, constitutional, for Congress to require that before a
covert operation is undertaken there be a presidential finding?
Judge WEBSTER. Not" in my mind.
Mr. BERMAN. How about that the finding be reduced to writing
either contemporaneously or within 48 hours where time is of the
essence?
Judge WEBSTER. Well, I slipped, getting on the slippery slope of
giving constitutional opinions, and I would like to avoid that. I
don't have any practical problem with it. If you could put it on the
basis of practical issues, we can do it.
Mr. BERMAN. Here is our problem. The Administration, I gather,
is asserting three reasons for urging us to defeat this legislation.
One, is the third-country matter, which I think has been effec-
tively responded to by Mr. Hamilton and Mr. Solarz. The second is
this question of the expanded potential for unauthorized leaks.
But my assumption-and correct me if I am wrong-is that there
is absolutely no evidence that there has been any unauthorized dis-
closure of a covert operation, prior to completion of that covert op-
eration, as a result of the notification required and undertaken by
the Administration to the Intelligence Committees during this Ad-
ministration.
Could we establish that for the record? I have been told there is
no dispute about that, but I think it would be good to get that on
the record.
Judge WEBSTER. I would rather respond to that for the record.
That is a pretty sweeping statement and I don't know that I am in
a position to give it to you off the top of my head. I can't identify in
my mind.
Mr. BERMAN. Let me ask the question as precisely as I can.
There is no instance in which-it is my understanding, and I
would, be interested in knowing if this is the Administration's un-
derstanding as well-that there is no instance in which advance
notification of covert operations has resulted in. advance disclosure
by virtue of the briefings to the Intelligence Committees or to the
group of eight.
Judge WEBSTER. I believe, although I can't say that I know-I be-
lieve that that statement is correct. There have only been three sit-
uations in which notice was not given.
Mr. BERMAN. Well, in the cases where notice has not been given,
there has not been unauthorized disclosure by virtue of the notifi-
cation to Congress.
I am talking about the instances-Mr. Hyde says it hasn't been
that many, but I am talking about where there has been notifica-
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tion to Congress, and my understanding is that there is no evidence
of unauthorized disclosure as a result of those notifications.
Judge WEBSTER. Well--
Mr. BERMAN. There was once a threat which was never carried
out, but there has been no such disclosure?
Judge WEBSTER. I think that is generally true. I am trying to
think in terms of over time. It becomes an awareness of some of
these covert actions, people talk about aspects of them, but wheth-
er they come from--
Mr. BERMAN. I am speaking prior to the time the covert oper-
ation was completed.
Judge WEBSTER. I think your statement is probably true.
WHAT SHOULD BE THE TIME RESTRICTIONS PUT ON THE
ADMINISTRATION TO NOTIFY CONGRESS?
Mr. BERMAN. As I understand it, the issue is not whether Con-
gress should be notified, but what kind of restrictions to put on the
Administration in terms of time.
There is an acceptance that Congress should be notified of all
covert operations; is that a fair statement?
Judge WEBSTER. I think that is fair.
GENERAL NOTIFICATIONS REQUIREMENTS TO CONGRESS
Mr. BERMAN. Well, we have started going down that slippery
slope that I hope to pursue with you, but I think, given where my
time is, rather than pursue that I would like to move to another
subject.
In legislation which Mr. Hyde and I sponsored which has passed
the House, dealing with arms transfers to countries on the terrorist
list, overhauling some of the general notification requirements in
which we have worked closely with the Central Intelligence
Agency and other parts of the Administration-and I think we
have removed fundamentally any Administration opposition to leg-
islation. We removed a provision which required the Intelligence
Committees to be fully informed of arms transfers made as a part
of covert operations.
It is my understanding, based on the discussions, that part of a
presidential finding, part of what is notified to Congress will in-
clude any arms transfer component of a covert operation, any mu-
nitions item, that is the practice in the Intelligence Committee no-
tifications and briefings.
Is that a correct statement of the practice?
Judge WEBSTER. I believe, if I understand your question, that it is
correct.
The practice is to distinguish between lethal and nonlethal aid.
The extent to which the finding actually specifies quantity or qual-
ity and so forth, I think we don't do that. But that is followed up in
scope notes and other briefings to the Congress, to the Oversight
Committees.
Mr. BERMAN. I want to make sure I understand, that when you
notify, when you provide the prior notification required by the law,
except under the unusual circumstances, that you provide notifica-
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tion of a munitions list transfer as part of that covert operation as
well, that that is the practice?
Judge WEBSTER. We call it lethal aid.
Mr. BERMAN. Lethal?
Judge WEBSTER. Yes. Yes, we do.
Mr. BERMAN. All right.
Mr. Leach raised the question of the advisability of submitting
the formal presidential finding to the Intelligence Committees. Put-
ting aside the question of the timeliness, as I understand it the na-
tional security directive provides. for that transfer of the finding, of
a copy of the finding, to the Intelligence Committees.
What would be the problem with including that in any statutory
provision?
Judge WEBSTER. I am not objecting to any language of that kind
and I don't believe the Administration is as such. That is-I think
the earlier thinking, pretty much as Mr. Leach outlined, is an
effort to keep it from personalizing and to try to insulate the Presi-
dent from personal responsibility for specific acts of conduct made
pursuant to the finding.
But beyond that I don't know of any legal inhibition or prohibi-
tion and we have not raised objection to it..
Mr. BERMAN. You are requiring it by virtue of your own national
security directive?
Judge WEBSTER. That is correct.
Mr. BERMAN. Thank you, Mr. Chairman.
Chairman FASCELL. Mr. Bereuter.
Mr. BEREUTER. Thank you very much for your testimony. I have
been spending part of my time in waiting reading related extracts
from NSDD 286. It would seem to me that this National Security
Decision Directive answers many of the objectives that the, admin-
istration seeks to obtain-maybe all of them.
One of the problems I see with the procedure of establishing
NSDDs is that subsequently one can be issued which makes excep-
tions to them. For example, NSDD 286 could be modified as to the
kind of notifications that Congress would receive. And, as someone
else pointed out, we may not in fact know when a new directive is
issued.
Now, if we are to avoid taking these actions by statute, can you
gentlemen or anyone else in the Executive Branch give us some
way of dealing with the possibility that these good procedures that
are helpful to keeping selected Members of Congress informed will
not be set aside with or without our knowledge?
Judge WEBSTER. Well, I think your point:. is very well taken and.
it highlights the real emphasis between trying to find legislative so-
lutions to all problems which -in effect then create problems of
their own kind, such as Mr. Hyde talked about, and the expecta-
tions and commitments of the executives assigned to carry out
those national directives.
I would not impute to the President the possibility that he might
try to pull the blind down on this directive by some indirect and
substitute national decision, National Security Decision Directive.
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There would be no way for me to view it other than some act of
deception.
And in my present capacity, and the commitments I made at the
time of confirmation, I don't believe that I could accommodate to
that, but I would never expect this President to do that nor would I
be willing to accept that kind of conduct from any other President
under whom I might serve. I would have a personal obligation to
do something about it.
Mr. BEREUTER. Of course, I am trying to look at this under an
institutional basis, regardless of who the President is at the
moment.
I understood that some kind of oral assurance was given to the
Senate Intelligence Committee on this very subject. I don't know
that that is the case.
Judge WEBSTER. It started with a letter from the President to the
Congress and was followed up then by a formal National Security
Decision Directive.
I believe the President's commitment is there. And I do not be-
lieve he could or would attempt to change that commitment with-
out a formal notification to Congress that he is operating under a
different set of rules.
Mr. BEREUTER. It is true, isn't it, that the President can sign a
directive or remove one from existence without any established
group of people necessarily being involved? Could, with one person
for example, decide to issue a directive which would have force?
That is theoretically possible, isn't it?
Mr. ARMACOST. I believe it is.
Judge WEBSTER. Right.
Mr. BEREUTER. I would ask the Director, in your statement you
said that you thought the definition of what constitutes covert ac-
tions in terms of a special activity as defined here "removes much
of the ambiguity over what constitutes such covert action," and
later you said a distinct improvement. Are those words of art or
can you think of additional ways that this definition could be im-
proved?
Judge WEBSTER. I think that is an improvement because it recog-
nizes in a statutory way what we have had to depend on by way of
legislative history for an understanding of a meaning for those
terms, and makes it clear that it does include that legislative histo-
ry-Mr. BEREUTER. Do you think they are deficient in any way? Do
you think the definition is deficient in any way?
Judge WEBSTER. I have no suggestions to make to improve it. I
think we understand it, it is what we have been living under and it
codifies on what to now has been based on legislative history.
Mr. BEREUTER. Mr. Secretary, do you have anything you wish to
say about either question I have formulated?
Mr. ARMACOST. I think I would merely say, Mr. Bereuter, that
the practices, which in my experiences endure from one adminis-
tration to another, are practices which work and which enjoy, the
support of those who have been actively engaged both on the Hill
and the Executive Branch in managing those activities-in this
case, sensitive intelligence activities.
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I think, to go back to Mr. Hyde's question-and I am not a con-
stitutional scholar and I think Bill Webster is prudent in leaving
these matters to Justice-I would recall Edwin Corwin describe the
Constitution as it applied to some areas as a- standing invitation to
struggle. I think it would be unfortunate if we got our attention
diverted to the jurisdictional issues here rather than concentrating
on ways to manage sensitive intelligence activities. It is my experi-
ence that over the last year and a half, people have learned the
proper lessons from the Iran-contra episode. We have gotten 'better;.
procedures in the Executive Branch. It is my impression that in
the intelligence committees, a tremendous amount of information
is shared and a good deal of confidence has been established in
those procedures.
It seems to me it would be an unfortunate thing if we wound up
inviting the kind of jurisdictional struggle that we have had in the
War Powers areas in this area also rather than focusing on proce-
dural arrangements that are working quite well, and that permit
you to have oversight without encroaching upon that preserve of
Presidential prerogative which Mr. Hyde was speaking of, and in
his quotation from Jacques Rosseau.
I don't know that this can be fixed with absolute precision legis-
latively. I think what we agree upon and what we deem to be the
normal rule, that is 48 hours, is reasonable, and this should under-
lie our common effort.
We would simply add that we can envision circumstances in
which the exception would obtain and we don't want to make that
a focus for a struggle between the branches; we want to concen-
trate on making it work, and I think it is working well.
Mr. BEREUTER. Thank you. Let me ask one more quick question.
Pragmatically, what happens in a change of administration. Are
the NSDDs automatically taken and re-embraced by the new~Presi-
dent until such time that any changes are identified? Is that prag-
matically what happens?
Mr. ARMACOST. Frankly, I would have to return to the record and
provide a written answer.
I think by and large there is a re-look by a new administration
at least when there is a change of party. As I recall in this admin-
istration, the first NSDD that was at least considered involved the
procedures under which the national security system would work.
Of course, those procedures are central to the management of intel-
ligence operations. I expect that is the case.
I wish to have an opportunity to refer back to my colleagues and
provide something for the written record.
[The information follows:]
Presidential directives (such as NSDD's) normally remain in force until they are
formally revoked. This is also the case with new administrations. The directives are
normally reviewed by the incoming President and remain in force until a decision is
made on whether they should be terminated or modified.
Mr. BEREUTER. Thank you.
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Judge WEBSTER. I can tell you from my own experience in a tran-
sition of administrations that we consider all directives to be in
place until notified to the contrary.
Mr. BEREUTER. Thank you, Mr. Chairman.
Chairman FASCELL. Mr. Levine.
Mr. LEVINE. Mr. Chairman, I have a number of questions. How-
ever, in deference to the witnesses and the scheduling-and to our
next witness who has been waiting for a long time-I will suspend
and not ask questions of these witnesses at this time.
Chairman FASCELL. Well, we certainly can submit them for the
record, Mr. Levine. I thank you.'
Any members who wish to do that, we appreciate'it.
Chairman FASCELL. Mr. Weiss.
PREVIOUS TESTIMONY ON SUPPORT FOR 48 PREVIOUS-HOUR RULE
Mr. WEISS. Thank you, Mr. Chairman.
For the same reasons, I am going to limit myself to two very,
very brief questions.
Mr. Director, these are addressed in light of the question Mr.
Hyde asked about Senator Cohen's testimony that he arrived at the
48-hour notification time frame on the basis of discussions and tes-
timony from Mr. Gates, Mr. McMahon, and yourself.
I ask you first in testimony before the Senate Intelligence Com-
mittee, John McMahon, former Deputy Director for Operations of
the CIA, was asked if he supported the 48-hour requirement. He
said,
I do. I come from the position that the Intelligence Oversight Committee has to be
an integral part of our intelligence program. I also believe very strongly it should
have bipartisan support or it is eventually doomed for failure.
Are you familiar with that response?
Judge WEBSTER. I am familiar generally with Mr. McMahon's
testimony and what he has told me with respect to that testimony.
Mr. WEISS. Do you deny that that was his response? Do you agree
that was his response?
Judge WEBSTER. I don't have it before me, but it sounds like his
response.
Mr. WEISS. It is my understanding that in your testimony before
the Senate Intelligence Committee during confirmation hearings
on your nomination as DCI, you stated that you couldn't conceive
of a situation in which notice of a covert action should not be given
to the intelligence committees within a few days of its initiation
and if the President ordered you to do otherwise, you would resign.
Do you recall giving that answer?
Judge WEBSTER. That sounds like the substance of what I said.
Mr. WEISS. Thank you.
Thank you, Mr. Chairman.
Chairman FASCELL. Mr. DeWine.
Mr. DEWINE. Mr. Webster, what did Mr. McMahon tell you
about that testimony?
Judge WEBSTER. He told me that he had come to the conclusion
that whenever there was a problem of this kind that inevitably the
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Agency became the fallguy for it and that from a parochial point of
view, he thought that it wasn't necessary for the Agency to expose
itself to this kind of thing because in almost every case, it was able
to provide notice within 48 hours.
That was his view of it. He didn't address the constitutional
question and I don't recall his having considered the outside cir-
cumstances, the rare circumstance.
He was tired of having the Agency--
Mr. DEWINE. Take the hit on it?
Judge WEBSTER. Right.
Mr. DEWINE. His perspective was called we say a more narrow
perspective in that he was looking at it from the point of view of
the Agency and did not look at the overall global view or some of
the other possibilities?
Judge WEBSTER. I think that is correct.
Mr. DEWINE. There has been a lot of talk this morning about the
fear that the Canadians had in regard to the embassy situation
about leaks from Congress.
We certainly have talked a lot about that. I wonder, though, if in
your experience other nations have expressed a reluctance to
either engage in covert operations or maybe even share intelli-
gence with the U.S. if Congress was notified? Is that a hypothetical
problem we are talking about?
In your opinion, is it a practical problem?
Judge WEBSTER. No. It is a very real problem. It is one that I
have had to confront from time to time with both expressions of
concern and indications that certain kinds of information might
not be available to us because of the perception that too many
people are involved in preparing the pudding.
We ourselves have expressed reservations in other countries I
would rather not name where those outside the intelligence com-
munity are-in that country are dipping into raw files and, there-
fore, exposing information we supply to ventilation outside the in-
telligence community.
It is an ongoing concern. Sometimes it is over-stated. We are
dealing with perceptions often more than we are dealing with reali-
ty. But they do express it, and they exist in a somewhat different
environment than we do.
When we try to give reassurances on this, I am not at all sure
how much we are getting back. We get some tacit understanding
but I am not sure we are getting the information.
Mr. DEWINE. Let me read, if I could, to you a quote from Admi-
ral Stansfield Turner, former CIA Director. This was in testimony
before the House Intelligence Committee.
In that testimony he argued that risk is the most important de-
termination of when to notify the Congress of covert operations.
The timeliness of notification is not measured by a clock. Timeliness should be
measured by risk. When that risk to human life is diminished sufficiently is when it
is timely to notify the Congress.
Do you agree with that assessment? Do you have a comment
about that?
Judge WEBSTER. I think that is probably another way of saying
what I said earlier. It is time to tell when the need to tell out-
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weighs the reasons for not telling. It is a balancing process in
which risk definitely plays a role.
There is no reason not to tell the Congress unless either there is
a very substantial risk of life-threatening-type situation which you
must keep to a minimum by confining those who know it or some
restriction has been imposed by those offering the information on
further dissemination.
CONGRESSMAN HYDE'S BILL PROVIDING FOR A JOINT INTELLIGENCE
COMMITTEE
Mr. DEWINE. We talked a lot today about the potential of leaks. I
wonder if you have had a chance to look at Congressman Hyde's
bill which would provide for a joint intelligence committee, a small-
er intelligence committee, smaller staff combining the two commit-
tees, the House Committee and the Senate Committee, and if you
have any comments about that.
Judge WEBSTER. Some very strong arguments can be made and
have been made in favor of a joint committee. I think there also
are some benefits from preserving both the House and the Senate
Intelligence Committees. I haven't come to a personal conclusion
about it other than anything that would reduce the numbers of
people who have access to the information, collectively reduce the
numbers of people, we would consider a step forward.
The combined staffs, all the numbers of people where the infor-
mation is duplicated, I see some benefit in getting by with fewer
numbers.
Mr. DEWINE. Fewer people?
Judge WEBSTER. Fewer people.
Mr. DEWINE. Thank you very much.
Thank you, Mr. Chairman.
Chairman FASCELL. Mr. Owens.
Mr. OWENS. I have no questions, Mr. Chairman. Thank you.
Chairman FASCELL. Mr. Atkins.
Mr. ATKINS. I will submit my questions in writing, Mr. Chair-
man.1
Chairman FASCELL. Gentlemen, thank you very much. We appre-
ciate your being here and testifying and responding to the ques-
tions in writing that may be submitted.
Also, submit the additional material we discussed.
Thank you very much. I hope you make your appointment. We
tried to get you out at 11:45.
Judge WEBSTER. Thank you, Mr. Chairman.
Chairman FASCELL. Our next witness is the Honorable Clark Clif-
ford who has been patiently waiting. I express my appreciation to
you, Mr. Clifford, not only for your willingness to appear and testi-
fy, but also for being so patient to give your testimony this morn-
ing. you would take your position at the witness table, we would
appreciate it. We will prepare to start.
Again, let me express my appreciation. You have served your
country faithfully and well over a long period of time in many ca-
I The response to Mr. Atkins' question was received in classified form and is retained in the
committee's files.
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pacities. We appreciate your testimony today and your willingness
to answer such questions as may be put to you.
STATEMENT OF HON. CLARK M. CLIFFORD, FORMER SECRETARY
OF DEFENSE
Mr. CLIFFORD. Thank you, Mr. Chairman.
I have a short statement to read. I think it has some importance
because my approach is so different from that of Director Webster.
I am pleased to appear before you today to offer my views on the
subject of covert activity, and in particular, the legislation under
your consideration for improving the process whereby these activi-
ties are approved by the President and made known to the Con-
gress.
This is a subject of great significance to our nation's foreign
policy and our system of government. It is also, as we have recently
seen, a subject of serious potential abuse. Therefore, the Commit-
tee's efforts are both timely and vital.
As the Committee knows, covert activities have become numer-
ous and widespread, practically constituting a routine component
of our foreign policy. And with these activities have come repeated
instances of embarrassing failure-where the goals of the oper-
ations themselves were not fulfilled and unforeseen setbacks oc-
curred instead.
I believe that, on balance, covert activities have harmed this
country more than they have helped us. Certainly, efforts to con-
trol these activities, to keep them within their intended scope and
purpose, have failed.
We have reached the point now where we must reassess the very
idea of conducting covert activities. If we are to continue with them
and gain any benefit from them, we must find a way to keep them
consistent with the principles and institutions of the Constitution
and our foreign policy. If we determine that this cannot be done,
then I say we are better off without covert activities entirely than
with them out of control.
On this score, we must keep in mind what is meant by covert ac-
tivities. These are only part, a very small part-perhaps two or
three percent-of the intelligence activities of our government.
Covert activities, in my definition, are active efforts to alter politi-
cal conditions in foreign countries through financial, paramilitary,
and other means. That the government should want to disavow re-
sponsibility for such activities is understandable.
Over the last year or so, the cost that covert activities can inflict
on our system of government also has been clear. Whatever the
specific actions or individual responsibility, the sale of arms to Iran
and the diversion of profits from those sales to the Contras in Nica-
ragua caused severe damage to our government and the institution
of the presidency. The President's credibility suffered drastically
and with it the integrity of the nation's foreign policy.
One of the principal shortcomings of the Iran-Contra affair was
the failure of the President to notify the intelligence committees of
the government's activities. The oversight process could have
served a significant, salutary purpose: giving the President the ben-
efit of the wisdom of those who were not beholden to him, but be-
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holden like him directly to the people, and prepared to speak
frankly to him based on their wide, varied experience. Had the
President taken advantage of notifying Congress, he and the coun-
try might well have avoided tremendous embarrassment and loss
of credibility.
The Iran-Contra affair presents this committee and the country
with a crucial question: should the laws governing covert activities
be changed?
To answer this question, we first might examine the attitude of
President Reagan. In his letter to the Senate Intelligence Commit-
tee of August 7, 1987, the President said that the current laws are
adequate and that any changes could occur by executive order. I
strongly disagree.
In the Iran-Contra affair, the President displayed an attitude
that is antithetical to the oversight process. You will recall that
the President signed a finding that explicitly instructed the Direc-
tor of the CIA not to notify the Congress of the activity.
For ten months the Director and others involved abided by this
instruction. In fact, the President finally notified the Congress only
after the activity had become public knowledge. Much later, after
the Congress had begun its inquiry, the President in his letter to
the committee supported the concept of notification but insisted on
two exceptions. These exceptions would relieve the President of the
notification requirement in "cases of extreme emergency" and "ex-
ceptional circumstances". I suggest to this committee that to
permit these two exceptions would make the notification require-
ment meaningless.
Further evidence of the Administration's attitude is the Justice
Department's December 1986 memorandum supporting the Presi-
dent's position in delaying notification for ten months. The memo-
randum offered the novel theory that the President may himself
determine what is timely notice based on the sensitivity of the
covert activity. According to this theory, the President would never
have to inform Congress of a particularly sensitive activity.
Moreover, we find that this continues to be the legal theory of
the Justice Department. In testimony before the Senate Intelli-
gence Committee in December 1987, a Department representative
made the following statement:
There may be instances where the President must be, able to initiate, direct and
control extremely sensitive national security activities. We believe this presidential
authority is protected by the Constitution, and that by purporting to oblige the
President under any and all circumstances, to notify Congress of a covert action
within a fixed period of time, S. 1721 infringes on this constitutional prerogative of
the President.
In other words, it is the attitude of the Administration that,
whatever laws exist, the President may interpret them as he choos-
es. This is not the way that I understand our Constitution is sup-
posed to work. So, my answer to the question confronting us today
is that the laws governing the oversight process must be changed.
And the changes must be specific, direct, and as clear as possible.
I wish to lend my full support to H.R. 3822, the legislation that
the committee is considering today. Late last year, I testified before
the Senate Intelligence Committee and supported S. 1721, the com-
panion bill to H.R. 3822, and earlier this year, I testified before the
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House Intelligence Committee concerning H.R. 3822. I understand
that all of the committees have worked together on these bills, and
I 'commend this cooperation, as well as its result. The legislation
that has been crafted meets the need for change that exists in the
important area of notification to the Congress.
H.R. 3822 would require the President to sign a written finding,
setting forth the particulars of a covert activity, normally when ap-
proving it but in no event more than 48 hours afterwards.
The legislation would require the President to provide the intelli-
gence committees with the signed finding normally before the ac-
tivity begins but in no event more than 48 hours after it is ap-
proved. The President could limit notification to the so-called
Group of Eight, but he would have to explain why he was doing so.
Findings that purported to validate past activities or authorize ille-
gal measures would violate the law.
I view these provisions as welcome and worthwhile improve-
ments in the oversight process. And the Senate's approval of the
legislation and the House Intelligence Committee's favorable report
of it are positive steps that I encourage this committee to follow.
I would note that I recommended to the intelligence committees
in my earlier testimony that the legislation be strengthened by in-
cluding criminal sanctions for failure to notify Congress within the
required period. Specifically, I proposed that a provision be added
to H.R. 3822 prohibiting the continued expenditure of funds for any
covert activity where proper notice was not given, and penalizing
any government employee who knowingly and willfully violated or
conspired to violate this prohibition. While the intelligence commit-
tees did not adopt this proposal, it should remain an important
consideration for the future.
Finally, there are two questions concerning H.R. 3822 that arose
during my previous testimony before the House and Senate com-
mittees and that you also may wish answered.
First, is H.R. 3822, particularly the specific-notice requirement,
consistent with the Constitution?
I have studied this question extensively. I am convinced of the
constitutionality of requiring the President to provide notice of
covert activities within 48 hours of approving them. There is no
basis in the Constitution for the Administration's claim of plenary
Presidential power in foreign affairs; rather, Congress and the
President share concurrent authority in this area according to the
constitutional system of checks and balances. It is entirely consist-
ent with Congress' legislative and other enumerated powers to es-
tablish reasonable procedural regulation of covert activities.
On this score, it bears emphasizing that the specific-notice re-
quirement in H.R. 3822 is strictly procedural, not substantive. It
does not dictate or limit what covert activity the President may ap-
prove or how or when the activity may occur. It simply says that
the President must provide notice within a time certain. As the
committee knows, the oversight process does not give Congress a
veto, only a voice.
Notice is an obvious and essential component of oversight, and it
is the least of what Congress may require in fulfilling its oversight
function. After all it was by act of Congress-the National Security
Act of 1947-that the CIA was established and exists today; and it
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was by this same act of Congress that covert activities were author-
ized and continue to occur. H.R. 3822 represents a refinement of
Congress' previous reasonable procedural regulation of covert activ-
ity.
Second, is this the appropriate time to enact this legislation?
Absolutely. Indeed, I believe that the legislation is long overdue.
We have gone through the agony of covert activity gone awry all
too often. Change is essential.
I can recall some 13 years ago testifying before the Select Com-
mittee to Study Governmental Operations-the Church Commit-
tee-regarding the gross abuses in covert activities that were the
concern of that committee. In my testimony in 1975, I said:
The lack of proper controls has resulted in a freewheeling course of conduct on
the part of persons within the intelligence community that has led to spectacular
failures and much unfortunate publicity. A new approach is obviously needed, for it
is unthinkable that we can continue to commit the egregious errors that have
caused such consternation to our friends and such delight to our enemies.
The Church Committee helped enact the 1980 Intelligence Over-
sight Act, and this certainly was a step forward. But today we
know that it was not enough. Sadly, my words from 1975 are all
too pertinent today.
Now, the nation has endured yet another devastating blow to our
stature and effectiveness. The Iran-Contra affair demonstrated con-
vincingly that the flexible requirement of the 1980 Act-that Con-
gress be notified of covert activity in a "timely fashion"-is too
easily eluded by expedience. The law must be made explicit and
firm so that the oversight process functions and the nation bene-
fits.
In my view, there is no excuse for failure to notify the Congress
according to the law, and there should be no exception to compli-
ance with such law. The purpose of this legislation is not to assume
good faith but to ensure good government.
For many years the United States has offered leadership to the
world because of our character as a nation and our devotion to
freedom and the liberty of man.
We have great economic power.
We have unparalleled military power. But our standing in the
world community rests mainly upon the confidence and trust that
other nations have in us.
We do not hold the free world together at gunpoint.
It is mutual trust that binds us. And the vital element of that
trust is our credibility.
Unfortunately, our credibility has been grievously damaged this
past year in many parts of the world.
It is incumbent upon all who are in positions of authority to take
the necessary steps toward restoring our former position. This leg-
islation is a splendid move in this direction, and will be of vital im-
portance in reducing the possibility of another similar disaster.
Thank you.
[Secretary Clifford's prepared statement follows:]
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PREPARED STATEMENT OF HON. CLARK M. CLIFFORD
Chairman Fascell and members of the Committee:
I am pleased to appear before you today to offer my views
on the subject of covert activities,. and in particular the
legislation under your consideration for improving the process
whereby these activities are approved by the President and
made known to the Congress. This is a subject of great
significance to our nation's foreign policy and our system of
government. It is also, as we have recently seen, a subject
of serious potential abuse. Therefore, the Committee's
efforts are both timely and vital.
As the Committee knows, covert activities have become
numerous and widespread, practically constituting a routine
component of our foreign policy. And with these activities
have come repeated instances of embarrassing failure -- where
the goals of the operations themselves were not fulfilled and
unforeseen setbacks occurred instead. I believe that on
balance covert activities have harmed this country more than
they have helped us. Certainly, efforts to control these
activities, to keep them within their intended scope and
purpose, have failed.
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We have reached the point now where we must reassess the
very idea of conducting covert activities. If we are to
continue with them and gain any benefit from them, we must
find a way to keep them consistent with the principles and
institutions of the Constitution and our foreign policy. If
we determine that this cannot be done, then I say we are
better off without covert activities entirely than with them
out of control.
On this score, we must keep in mind what is meant by
covert activities. These are only part, a very small part --
perhaps 2 or 3 percent -- of the intelligence activities of
our government. Covert activities, in my definition, are
active efforts to alter political conditions in foreign
countries through financial, paramilitary, and other means.
That the government should want to disavow responsibility for
such activities is understandable.
Over the last year or so, the cost that covert activities
can infl'.ct on our system of government also has been clear.
WhateNer the specific actions or individual responsibility,
the sale of arms to Iran and the diversion of profits from
those sales to the contras in Nicaragua caused severe damage
to our government and the institution of the Presidency. The
President's credibility suffered drastically and with it the
integrity of the nation's foreign. policy.
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One of the principal shortcomings of the Iran-contra
affair was the failure.of the President to notify the
intelligence committees of the government's activities. The
oversight process could have served a significant, salutary
purpose: giving the President the benefit of the wisdom of
those who are not beholden to him, but beholden like him
directly to the people, and prepared to speak frankly to him
based on their wide, varied experience. Had the President
taken advantage of notifying Congress, he and the country
might well have avoided tremendous embarrassment and loss of
credibility.
The Iran-contra affair presents this Committee and the
country with a crucial question: should the laws governing
covert activities be changed?
To answer this question, we first might examine the
attitude of President Reagan. In his letter to the Senate
Intelligence Committee of August 7, 1987, the President said
that the current laws are adequate and that any changes could
occur by executive order. I strongly disagree.
In the Iran-contra affair, the President displayed an
attitude that,is antithetical to the oversight process. You
will recall that the President signed a finding that expli-
citly instructed the Director of the CIA not to notify the
Congress of the activity. For ten months, the Director and
others involved abided by this instruction. In fact, the
President finally notified the Congress only after the
activity had become public knowledge. Much later, after the
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Congress had begun its inquiry, the President in his letter to
the Committee supported the concept of notification but
insisted on two exceptions. These exceptions would relieve
the President of the notification requirement in "cases of
extreme emergency" and "exceptional circumstances." I suggest
to this Committee that to permit these two exceptions would
make the notification requirement meaningless.'
Further evidence of the Administration's attitude is the
Justice Department's December 1986 memorandum supporting the
President's position in delaying notification for ten months.
The memorandum offered the novel theory that the President may
determine what is timely notice based on the sensitivity of
the covert activity. According to this theory, the President
would never have to inform Congress of a particularly sensitive
activity.
Moreover, we find that this continues to be the legal
theory of the Justice Department. In testimony before the
Senate Intelligence Committee in December 1987, a Department
representative made the following statement:
There may be instances where the President must
be able to initiate, direct, and control extreme-
ly sensitive national security activities. We
believe this presidential authority is protected
by the Constitution, and that by purporting to
oblige the President under any and all circum-
stances, to notify Congress of a covert action
within a fixed Period of time. S 1721 infringes
on this constitutional Prerogative of the
President.
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In other words, it is the attitude of the Administration
that, whatever laws exist, the President may interpret them as
he chooses. This is not the way that I understand our
Constitution is supposed to work. So, my answer, to the
question confronting us today is that the laws governing the
oversight process must be changed. And the changes must be
specific, direct, and as clear as possible.
I wish to lend my full support to H.R. 3822, the.
legislation that the Committee is considering today. Late
last year, I testified before the Senate Intelligence
Committee and supported S. 1721, the companion bill to H.R.
3822, and earlier this year, I testified before the House
Intelligence Committee concerning H.R. 3822. I understand
that all of the committees have worked together on these
bills, and I commend your cooperation, as well as its result.
The legislation that you have crafted meets the need for
change that exists in the important area of notification. to
the Congress.
H.R. 3822 would require the President to sign a. written
finding, setting forth the particulars of a covert activity,
normally when approving it but in no event more than forty-
eight hours afterwards. The legislation would require the
President to provide the intelligence committees with the
signed finding normally before the activity begins but in no
event more than forty-eight hours after it is approved. The
President could limit notification to the so-called Group of
Eight, but he would have to explain why he was doing so.
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Findings that purported to validate past activities or
authorize illegal measures would violate the law.
I view these provisions as welcome and worthwhile
improvements in the oversight process. And the Senate's
approval of the legislation and the House intelligence
committee's favorable report of it are positive steps that I
encourage this committee to follow.
I would note that I recommended to the intelligence
committees in my earlier testimony that the legislation-be
strengthened by including criminal sanctions for failure to
notify Congress within the required period. Specifically, I
proposed that a provision be added to H.R. 3822 prohibiting
the continued expenditure of funds for any covert activity
where proper notice was not given, and penalizing any
government employee who knowingly and willfully violated or
conspired to violate this prohibition. While the intelligence
committees did not adopt this proposal, it should remain an
important consideration for the future.
Finally, there are two questions concerning H.R. 3822
that arose during my previous testimony before the House and
Senate committees and that you also may wish answered.
First, is H.R. 3822, particularly the specific-notice
requirement, consistent with the Constitution? I have studied
this question extensively. I am convinced of the constitution-
ality of requiring the President to provide notice of covert
activities within forty-eight hours of approving them. There
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is no basis in the Constitution for the Administration's claim
of plenary Presidential power in foreign affairs; rather,
Congress and the President share concurrent authority in this
area according to the Constitutional system of checks and
balances. It is entirely consistent with Congress' legislative
and other, enumerated powers to establish reasonable procedural
regulation of covert activities.
On this score, it bears emphasizing that the specific-
notice requirement in H.R. 3822 is strictly procedural, not
substantive. It does not dictate or limit what covert activity
the President may approve or how or when the activity may
occur. It simply says that the President must provide notice
within a time certain. As the Committee knows, the oversight
process does not give Congress a veto, but only a voice.
Notice is an obvious and essential component of
oversight, and it is the least of what Congress may require in
fulfilling its oversight function. After all, it was by act
of Congress -- the National. Security Act of 1947 -- that the
CIA was established and exists today; and it was by this same
act of Congress that covert activities were authorized and
continue to occur. H.R. 3822 represents a refinement of
Congress' previous reasonable procedural regulation of covert
activity.
Second, is this the appropriate time to enact this
legislation? Absolutely. Indeed, I believe that the
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legislation is long overdue. We have gone through the agony
of covert activity gone awry all too often. Change is
essential.
I can recall some thirteen years ago testifying before
the Select Committee to Study Governmental Operations -- the
Church Committee -- regarding the gross abuses in covert
activities that were the concern of that committee. In my
testimony in 1975, I said:
The lack of proper controls has resulted in a
freewheeling course of conduct on the part. of
persons within the intelligence community that
has led to spectacular failures and much
unfortunate publicity. A new approach is
obviously needed, for it is unthinkable that we
can continue to commit the egregious errors that
have caused such consternation to our friends
and such delight to our enemies.
The Church Committee helped enact the 1980 Intelligence
Oversight Act, and this certainly was a step forward. But
today we know that it was not enough. Sadly, my words from
1975 are all too pertinent.
Now, the nation has endured yet another devastating blow
to our stature and effectiveness. The Iran-contra affair
demonstrated convincingly that the flexible requirement of the
1980 Act -- that Congress be notified of covert activity in a
"timely fashion" -- is too easily eluded by expedience. The
law must be made explicit and firm so that the oversight
process functions and the nation benefits.
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In my view, there is no excuse for failure to notify the
Congress according to the law, and there should be no
exception to compliance with such law. The purpose of this
legislation is not to assume good faith but to ensure good
government.
For many years the United States has offered leadership
to the world because of our character as a nation and our
devotion to freedom and the liberty of man.
We have great economic power.
We have unparalleled military power. But our standing in
the world community rests mainly upon the confidence and trust
that other nations have in us.
We do not hold the free world together at gunpoint.
It is mutual trust that binds us. And the vital element
of that trust is our credibility.
Unfortunately, our credibility has been grieviously
damaged this past year in many parts of the world.
It is incumbent upon all who are in positions of
authority to take the necessary steps toward restoring our
former position. This legislation is a splendid move in this
direction, and will be of vital importance in reducing the
possibility of another similar disaster.
Thank you.
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COVERT OPERATIONS IN AN OPEN SOCIETY
Chairman FASCELL. Mr. Clifford, thank you very much. I appreci-
ate your testimony.
I think you raised in addition to the specifics with regard to the
legislation and the legal matters-and I certainly respect your
legal ability in the examination of both the constitutional questions
and the legislative questions-but you also raised a fundamental
issue with regard to the use of covert operations by an open socie-
ty, a constitutional republic, in our efforts to deal with an alien or
a different ideology.
I find it refreshing that while you are willing to accept the idea
that perhaps there comes a necessity to conduct a covert operation,
that in the process, we ought not to change our society or system of
government. I find it equally as frustrating as many of my col-
leagues in dealing with the opposition that exists in this world and
the frustration and the competition that exists, but I find that after
long experience less than desirable to abolish the Congress, change
the Constitution, close the society in order to win a fight some-
where.
I think we are more intelligent than that. I think we have a
greater responsibility. I think Mr. Armacost had a more enlight-
ened view, although he supports the Administration's position,
when he said that we ought not to engage in the constitutional
struggle here-I don't think one exists, frankly-but nevertheless,
we ought to find a practical, sensible way for a democratic society
to deal with this problem.
I believe, like you, that this legislation gives us that opportunity.
I want to thank you, also, for the suggestion you made. I think
we have to give very serious consideration to this matter of how we
conduct our covert operations, what responsibility and place, if
any, Congress is to have, and also how we get a handle on it other
than the two meat axe approaches that normally we are confronted
with, which is impeachment of the President, or cutting off all his
money.
So I am ready to consider the question that if a finding is not
presented, if notice is not presented pursuant to the law, then we
ought to resort to the funding process. That is the only handle Con-
gress really has.
PREVIOUS ADMINISTRATIONS THAT COULD HAVE GAINED BY THIS LAW
I want to thank you for that suggestion.
Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
It is a real pleasure to meet Mr. Clifford again. Incidentally, just
commenting briefly on what the Chairman said, you don't have to
change the Constitution.
I certainly agree with that, especially if the Constitution is inter-
preted willy-nilly as silly putty which there is a very extant theory
that that is proper constitutional interpretation. God forbid anyone
have original intent on their mind.
The constitutional system of checks and balances, Mr. Clifford,
you mentioned, but I did not see in your statement or hear in your
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78
testimony any comment on the constitutional system of separation
of powers, which I think is somewhat at issue here.
Do you feel the Carter Administration was justified in withhold-
ing notification to Congress of at least three covert actions relating
to the Iranian hostage situation, the covert reconnaissance and
preparation for the mission, the actual mission that unfortunately
was a failure trying to get our people out, and then the assistance
to Canada, or Canadian assistance to us in getting six of our diplo-
mats out of the country?
Do you feel the Carter Administration was justified in withhold-
ing notification to Congress?
Mr. CLIFFORD. First, a general statement, Mr. Hyde. Different
people have different approaches to the whole subject of covert ac-
tivities. Many in the intelligence community believe that it should
be a routine weapon that our country uses. I do not.
I think it is inimical to many of our basic principles. I think it
should be carefully structured. It should be restricted very, very
carefully.
That is why I take the position that I do today. Thus, when
President Carter was considering the advisability of that venture
into Iran to rescue hostages, I would much have preferred that this
law be in effect at the time requiring him to come, let's say, to the
Group of Eight, and report what it was he intended to do.
If he had done that, it is entirely possible that wiser heads would
have persuaded him not to do it. It was a total disaster. It never
should have taken place.
It was planned poorly and carried out worse. Anything that
could have been done to prevent that tragedy would have been a
benefit to our country.
Mr. HYDE. Surely you are not referring to the successful part of
that operation where the Canadian embassy cooperated in our ex-
tricating six of our diplomats through forged passports and Con-
gress wasn't told for three-and-a-half months? You exclude that, I
take it?
Mr. CLIFFORD. No, I don't. I haven't gotten to that part yet.
In the first part I was talking about the venture into the desert. I
thought it was entirely wrong. I think it had no possibility of any
success.
Now if he had some agreement, if the Canadians said we will
help you get six hostages out, I think he should have gone to the
Group of Eight and reported that to them. That is what I want to
have take place.
Mr. HYDE. Breaking his word to the Canadians who insisted they
tell no one?
Mr. CLIFFORD. No. No. He wouldn't break any word. If the Cana-
dians put that restriction precedent on their offer, he would say I
will come back to you after I have thought this over. I do not want
the President to be the only individual that makes these decisions.
We had enough of that under George the Third. I want him to be
able to come back and consult with the people around him.
Mr. HYDE. That is--
Mr. CLIFFORD. Excuse me. I will finish. He must not make that
sole decision. He must come back and talk to State perhaps, to De-
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fense, and I want him also to talk on the Hill. Then he would have
gone back to them and said I cannot accept your condition.
We will have to find another way to get our people out and I
think we probably would have found another way to get them out.
Mr. HYDE. We would have done it another way then. All right.
You are talking about what is desirable.
I certainly agree. The more advice the President can get from
reasonable people, experienced people, the better his judgment will
be. But I think what we are talking about here when we are enact-
ing legislation is we are mandating certain conduct. From what
you have said, I take it that you reaffirm your statement in your-
the sentence in your statement that there is no basis in the Consti-
tution for the Administration's claim of plenary presidential power
in foreign affairs.
Rather, Congress and the President share concurrent authority
in this area according to the constitutional systems of checks and
balances.
Bearing that in mind, I take it you disagree with Thomas Jeffer-
son who said 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 especially
submitted to the Senate. Exceptions are to be construed strictly.
Or I take it you disagree with Alexander Hamilton who ex-
plained in his First Pacificus letter,
It deserves to be remarked that as to 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.
I won't burden you with John Jay's "Federalist" 64, and the whole history of our
constitutional law that says the President has the executive power and that Con-
gress has certain specifically defined and assigned responsibilities which are to be
construed strictly. To say they are both coequals, they are partners in the formula-
tion of policy, is without constitutional warrant.
May I have your comment on that?
Mr. CLIFFORD. Yes. The problem is approached intelligently in
the Federalist Papers. I call your particular attention to Federalist
Papers 69 and 75. Where discussed in great detail along with the
joint responsibility that the Congress and the President have.
The best modern discussion of the subject which is a very com-
plex one occurs in the decision of Youngstown Sheet and Tool
against Sawyer. Justice Jackson, in a concurring opinion, takes
quite a bit of time and talks about those areas in which the Presi-
dent has specific responsibility and those areas in which the Con-
gress has specific responsibility.
Then he uses an attractive phrase. He says in many areas there
is the twilight zone, and in those areas which occur over and over
again, there should be joint responsibility on the part of the Presi-
dent and the Congress.
Now, much attention has been given to a case that first came
up--
Mr. HYDE. Curtiss Wright?
Mr. CLIFFORD. Curtiss-Wright, There is some obiter dictum there
in which the Judge-not in deciding the case-branched out philo-
sophically. I have read that with interest. I think what he is talk-
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ing about is that the President is the sole spokesman for the coun-
try.
Mr. HYDE. Sort of a Larry Speakes on foreign policy. He is the
spokesman once the policy is formulated by the Senators, is that it?
Mr. CLIFFORD. No, once the policy is formulated by the President
and the Congress working together. But the President is the
spokesman. He is the day-by-day operator in that area, but in the
policy field, Justice Jackson says, there should be the closest kind
of cooperation between them. So that when it is suggested in the
Justice Department's memorandum that the President is the sole
determinator of covert action, that the more sensitive it is, the less
burden is on him to notify the Congress, it is so sensitive, he
doesn't have to notify them at all-that is what Mr. Cooper from
the Justice Department says in his opinion-I disagree entirely.
We do not have any government if the President is able to make a
decision in which he says this is so sensitive I am not going to
inform the Congress.
He might say I am not going to inform anybody, and that is
when our government breaks down.
Mr. HYDE. That has happened throughout our history. You know
that. Time and time again things have occurred that President
Roosevelt in World War II, President Washington on the Jay
Treaty, history is replete with examples of the President not, tell-
ing Congress, for whatever reason.
I am not saying it is desirable. I am not saying is is helpful. But
we are talking about the Constitution and what-how Congress can
legislate a check or a balance that is not in the Constitution and is
not in the writings of the Founding Fathers.
Mr. CLIFFORD. And at the same time, Mr. Hyde, there is nothing
in the Constitution that says that the President shall have plenary
power in the field of foreign policy. The word isn't mentioned.
Mr. HYDE. It says executive power. The executive is the execu-
tive. He is commander-in-chief.
Congress' powers are specifically enumerated and are to be
strictly construed if Madison and Jefferson knew anything about
the Constitution.
Mr. CLIFFORD. At the same time, if you please, the Constitution
does specifically give the Congress certain powers in foreign policy:
the power to declare war--
Mr. HYDE. They can declare it, but the President has to make it.
They made a distinction between "declare" war and "make" war.
We could argue on and on.
I don't want to trespass on your time. I would like to write you a
letter at some length and discuss these things more and perhaps
you would have time to read it.
Mr. CLIFFORD. I would value that.
If I might make one concluding comment-thank you so much
for your discussion. We have had certain tragedies in our country
these past years. They have occurred in the covert field. In the
1950s, we made an effort to change the government in Indonesia, a
total disaster.
A CIA pilot was shot down. The whole story broke. We were
doing something we should not have been doing.
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You all will remember in the sixties the Bay of Pigs debacle.
Total and complete disaster. We really got a very black eye out of
that.
We came along into the seventies. There we get into that Oper-
ation Mongoose which some of you may remember. It was a plan
within the intelligence community to assassinate Castro.
Mr. HYDE. Mr. Clifford, you forgot Italy right after the war, one
that worked very well, one that you were involved in.
Mr. CLIFFORD. That is right.
Mr. HYDE. Don't miss the successes.
Mr. CLIFFORD. I was really talking about our disasters. I will go
back and cover some successes, too.
We got to Operation Mongoose. The story broke that we had had
people in Cuba trying to assassinate Castro. We were made to look
ridiculous. One of the plans we were going to use, considered seri-
ously by the CIA, was to give him a box of Cuban cigars. When he
lit one, it would explode and he would be extinguished.
We then came on and got into Nicaragua and there the CIA
went down and mined the waters off of Nicaragua. Some of our
ally's ships ran into the mines. Nicaragua took us to the World
Court, and we went through the embarrassing experience of having
to withdraw from the whole matter because we were so wrong.
But then after all of the efforts made by the Church Committee
and others to put a stop to it, we came to the greatest debacle of
them all. That was the Iran-Contra affair. That is when the Presi-
dent was making speeches in this country to the American Bar As-
sociation, and, he was going to Japan, saying that we must never
deal with the terrorist nations.
The record shows within weeks after each of those speeches, he
was sending arms to Iran. So our credibility all through the world
sustained possibly permanent damage.
I say, Mr. Hyde, we have gotten to the point now that we have
had so much experience, let us for the first time step up to the
problem and do what has to be done. That is, require the President
to notify the Congress.
Mind you, if by any chance this law suggested that the Congress
could interfere with the President's decision, then the constitution-
al question would come into issue. It does not. The President can
sit down with the Group of Eight and each one of the eight can
say, Mr. President, you are getting ready to make a very serious
mistake. He can say to them all, after he listens to them, thank
you all very much, gentlemen, I appreciate your comments, I am
going right ahead.
He has that complete power. They have no involvement in it at
all because it is the Executive Branch. At the same time, what
would any of us give if the President had sat down with the Group
of Eight before he launched us on the Iran-Contra experience?
It is entirely possible that you would have been able to persuade
him not to do it. So let's improve our efforts in the covert field.
Let's keep them to a minimum. And whenever the President de-
cides then let the Congress know and you might be able to dissuade
him if it is an unfortunate decision.
Chairman FASCELL. Mr. Hamilton.
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82
NOTIFICATION REQUIREMENT DOES NOT RESTRICT THE PRESIDENT'S
FLEXIBILITY
Mr. HAMILTON. Mr. Clifford, first let me just extend my apprecia-
tion to you for your willingness to testify. As your comments in the
last few minutes have suggested, your vast experience and perspec-
tive are exceedingly helpful to this committee. We are grateful to
you for your appearance.
If I may shift away from the constitutional question, two of the
arguments you heard this morning presented by the Director and
by the Under Secretary were, number one, that this notification re-
quirement restricts the President's flexibility, and the Director
says, for example, an inflexible notification requirement could
force a President to choose between providing the congressionally
required notification within 48 hours and jeopardizing the lives of
innocent Americans delaying that notification to protect those
lives.
One of the arguments made here apart from the constitutional
question is you are restricting the President's flexibility.
The second argument that was made is that foreign governments
won't assist us if the Congress must always be informed. I wonder
if you could just elaborate quickly on those two things and why you
think those two particular arguments are not meritorious?
Mr. CLIFFORD. Yes. I believe there is no merit to the first argu-
ment. I do not understand it really. The President has conferred
with his Secretary of State, Secretary of Defense, the National Se-
curity Council, and they decide that they wish to launch a covert
activity.
We will call it Project A. They have talked it all out. They be-
lieve it would help. There is a political situation in some foreign
country and they make that decision.
The President reaches that decision on Monday, we will say. All
I want him to do is to prepare a brief finding, explain it-what it is
they are going to do-sign it, and send it up to the Hill.
He could do that on Monday. The bill gives him until Tuesday or
Wednesday morning to do it. I don't understand that that inter-
feres with his flexibility. I don't know that it puts people'.s lives in
jeopardy.
The fact is that if he got a cable saying you must act within 15
minutes-that is quite unusual-but if he did, he could go ahead
and act within 15 minutes, but then notify the Congress within 48
hours.
So when they say that the flexibility of the President is adverse-
ly affected, I do not even understand really what it is they are
saying.
On the second question, I was prepared perhaps to make the ar-
gument that one of you gentlemen had already made, and that is
that if a foreign power like Canada says we will assist you in gain-
ing the extrication of your six hostages but, Mr. President, you
must not notify the Congress, then under this law, the President-
should say I cannot make that agreement, I am bound by the law.
And the law says I must notify them in 48 hours.
So I will not break the law, because the Congress has passed it. I
vetoed it. They passed it over my veto, so it is the law of the land.
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It is right for the President to say that to them because we must
not be subject to those condition precedents that foreign govern-
ments place upon the operation of our government. They say we
don't want you to notify the Group of Eight. We don't want to
notify either the Secretary of State or anyone in the State Depart-
ment. That was discussed earlier. We would never submit to that.
Let's make it extreme and say, Mr. President, we will agree to do
this with you only if you do this entirely alone without consulting
anyone. That is totally abhorrent to our system.
That isn't the way we run our government. He has the right to
consult with the people in the Executive Branch and under this
law, in turn, he must notify the Congress. We build in safeguards
that way.
Suppose the Canadian plan was unfortunate. Maybe it didn't
have merit to it. Yet the President said, all right, I agree to this
and I won't consult with anybody and I won't consult with the Con-
gress and it turned out badly.
I want to tell you our country would be in trouble and the Presi-
dent would be in even worse trouble. So let's avoid results of that
kind.
Mr. HAMILTON. Thank you.
Thank you, Mr. Chairman.
Chairman FASCELL. Mr. DeWine.
EXAMPLES OF COVERT OPERATIONS THAT WERE SUCCESSFUL
Mr. DEWINE. Thank you, Mr. Chairman.
Mr. Clifford, I wonder if you could give me a little better under-
standing of the covert operation that you were involved in as far as
making the policy within Italy and the communists. Could you give
us a little background about that?
Mr. CLIFFORD. I missed some of those words.
Mr. DEWINE. You testified in regard to Mr. Hyde-he asked
you-he said, Mr. Clifford, weren't you involved in some covert op-
erations that were successful in regards to the communists in
Italy? I wonder if you, for the younger members of the committee, I
wonder if you could give us a little background on that and briefly
tell us what that consisted of?
Mr. CLIFFORD. Well, I will with reference to that particular in-
stance.
In the Spring of 1948, the Soviets were engaged in a period of the
most aggressive kind of expansionism. As you know, they had
taken all of the nations on their western periphery. They were ex-
tending their influence into Western Europe.
They established the Comintern which was a communist cell in
every country. We were watching it carefully because we wanted to
oppose, of course, the communization of Western Europe. They
were making more headway in Italy than in any other country.
The reports came in to us from Italy that the expenditure of some
wisely placed funds in Italy could be very useful in stopping the
communist advance in that country.
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84
So over a period of some months, funds were expended in Italy at
that time which ultimately led to the Italian decision turning down
the communist threat. That was one of our successful efforts.
TESTIMONY GIVEN IN FRONT OF THE CHURCH COMMITTEE
Mr. DEWINE. Thank you very much. Let's go back to your testi-
mony in front of the Church Committee, April 26, 1976. I will read
you a paragraph from that testimony and see if you still agree with
the essence of these comments. This is your testimony on that date.
Second, the creation of an effective House, the creation of an effective joint House
committee to oversee intelligence operations-I consider this the most important
function of the new law, proper congressional oversight law. Oversight has been
sadly lacking. I would hope that a small oversight committee of possibly five mem-
bers of a committee chamber might be created. It should be considered an assign-
ment of outstanding performance, and members should give necessary time to it. By
keeping the committee small, security can be maintained and the possibility of dis-
closures can be minimized.
I wonder if you still agree with that statement on that day.
Mr. CLIFFORD. The condition that existed at that time was that
we did not have any intelligence committee. So the reports came
into our large standing committees that existed. So the Church
Committee was searching for a more effective machinery to accom-
plish its purpose. I supported it. I thought it was a good idea. I
liked the idea of each chamber having an intelligence committee
and I liked the idea of keeping them small. And I might say I con-
tinue to support that position.
Mr. DEWINE. In fact, on that date you were talking, I believe,
about a joint committee and small in numbers?
Mr. CLIFFORD. Well, possibly as time goes on, you go through
varying opinions. I don't know how strongly I supported the idea.
Mr. DEWINE. But the size is important, is it not?
Mr. CLIFFORD. Size, I think, has some influence on it.
Mr. DEWINE. Expertise in the area?
Mr. CLIFFORD. Now I am inclined to believe that it is better to
have separate committees. I think it acts as an additional safe-
guard, but I believe in confining the size.
Mr. DEWINE. Thank you very much.
Chairman FASCELL. Mr. Solarz.
Mr. SoLARZ. Thank you very much, Mr. Chairman.
Mr. Clifford, whenever I hear you testify before our committee, I
feel more keenly than ever of my own inadequacies. I must tell you
that I think you are really a national treasure, sir, and it is won-
derful that you continue to be willing to share your wisdom with
our committee and with other Members of Congress on these very
important national issues. You bring to them a clarity of mind and
a degree of experience which we rarely receive on the Hill. I know
you have the esteem of all the Members of our committee on both
sides of the aisle.
There are some questions that I would like to ask you about this
legislation. I am concerned about how we actually go about secur-
ing compliance from the President with the timely notification pro-
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visions of the legislation, given the apparent view of the White
House that these requirements with respect to timely notification
constitute an unconstitutional infringement on the powers of the
President.
What would happen, in your judgment, if the legislation were to
be enacted even over the veto of the President and then the Presi-
dent simply refused to notify the Congress in a timely fashion on
the grounds that he wasn't constitutionally required to do so?
Would there be any way to bring him into compliance? If not, what
would we have accomplished by adopting this legislation?
Mr. CLIFFORD. This is a fundamental problem in the operation of
a democracy. If the same situation existed in the Soviet Union, the
matter would be settled very quickly. Somebody would either cease
to exist or end up in the salt mines of Siberia. But we don't work
that way.
The Congress passes a law in the expectation that the Executive
Branch will comply with it. Our system works that way. It will
have to continue to work that way even with all its weaknesses, or
we change from a democratic system to some other system.
Now, the very concern that you have is the one that prompted
me to make the recommendation that I did. I have made it before
the Senate Intelligence Committee and the House committee. I say
let's put in the law some sanctions, because, as it is now, there
aren't any sanctions. We have five laws now in existence that have
to do with how the President will handle covert matters.
Do you remember the 1980 law, Hughes-Ryan Bill, the original
act, the National Security Act of 1947 and so forth? To illustrate
the point that none of those has any teeth in them, I said I could
imagine a meeting one time in the White House basement presided
over by Colonel North, and Colonel North is talking about getting
$30 million from selling arms to Iran and somebody says, "Well,
Colonel, but how about the laws that are on the books?" And the
Colonel says, "Well, what are the laws?" And somebody reels off
five names of the laws. And he says, "What is the penalty for vio-
lating the law?" And the lawyer in the group says, "There aren't
any penalties." So the Colonel says, "Please don't bother me; let's
get on with the meeting."
Now, that is where we are now. That is where we will be even
after we pass this present act.
I was suggesting that you put language in the bill so that in
those instances in which the President refuses to sign a finding, or
refuses to send it to the Hill in 48 hours, that refusal automatically
terminates the President's right to expend any funds. You have
that right. You are the ones who appropriate the funds.
Then I would go further and say, if he then has no right to
expend the funds, he comes under a lot of laws because he is spend-
ing funds without congressional authority. I go further and say, for
those individuals working at the time, whether it is a Colonel
North or an Admiral Poindexter, whoever it might be, if they go
ahead and expend the funds in the knowledge that they are in vio-
lation of the law, that is a criminal offense and they are subject to
trial by jury, and punishment. I think both of those suggestions are
valid.
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Mr. SOLARZ. I think there is much merit to those suggestions and
I hope our committee will consider including amendments along
those lines in the legislation when we mark it up. But I wonder,
sir, whether you could elaborate on the suggestion by letting us
know precisely what kind of penalties, presumably criminal penal-
ties, you would think appropriate here for willful violations of the
requirement to issue a finding and to notify the Congress.
Mr. CLIFFORD. I would use the usual language. One penalty is a
$10,000 fine and five years in the penitentiary. I would put that
kind of a sanction into the law.
Mr. SOLARZ. Presumably that would apply to the President him-
self?
Mr. CLIFFORD. Well, there you have a very real constitutional
problem as to whether it applies to the President. I don't know
that we have to disturb ourselves about that because I think the
President, any President would be exceedingly loathe to take the
chance on that and test out the constitutionality of a criminal act
on his part. But it certainly would apply to everyone else in the
White House.
Mr. SOLARZ. Mr. Clifford, how would you distinguish the situa-
tion created by this legislation, in which an obligation is imposed
on the President which he believes is unconstitutionally imposed,
to the situation created by the War Powers Act where another obli-
gation to report to the Congress is imposed on the President in cir-
cumstances where our forces are introduced into situations where
hostilities may be imminent. As you know; every President we
have had over the last 15 years has believed that that requirement
is unconstitutional, as a consequence of which they have never car-
ried out their obligations under the law. And apparently it is
almost impossible to obtain a judicial determination of the constitu-
tionality of the issue because the Court believes this is a political
thicket into which it doesn't want to insert themselves.
Would this legislation be any different from the war powers leg-
islation? In other words, if in fact we had a President who believed
that the requirement to issue a finding and to report it within 48
hours of the Congress was unconstitutional and stood on his consti-
tutional interpretation, the law notwithstanding, would there be
any practical way to hold the President accountable for this viola-
tion of the law, or to induce him to comply in the first place?
Mr. CLIFFORD. This law will very likely fall into that same no
man's land in which the War Powers Act has fallen. Our system
possibly is inadequate in that regard. There will probably not be a
resolution one that I can foresee, of the War Powers Act controver-
sy. There probably would not be one here as far as the President is
concerned.
This, however, is sharper and clearer than that act. And I think
the President would be taking a substantially greater risk in refus-
ing to comply with this law because it is so specific.
If, on the other hand, you were to add those two other clauses,
making it illegal to .expend funds and having those who work for
the President be -subject to. criminal sanction, then the President
would be in a very bad situation where the people around him
could go to prison for violating the law but he claims it doesn't
apply to him.
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Mr. SOLARZ. I gather your feeling is that with the addition of
those two provisions and penalties for noncompliance, that the
prospects for adherence to the law would tilt very significantly in
the direction of compliance, precisely because of the penalties that
are in the law.
Mr. CLIFFORD. I think they are improved considerably.
PUTTING LANGUAGE IN THE BILL THAT WOULD LIMIT THE PRESIDENT
FROM INFLUENCING PUBLIC OPINION BY COVERT OPERATIONS
Mr. SOLARZ. One final question, if I might, Mr. Chairman. I don't
know if you have a copy of the bill in front of you, but on page 9,
lines 5 to 7, we find the following provision: "No special activity"-
and we are referring here to a covert operation-"may be conduct-
ed if it is intended to influence United States political processes,
public opinion, polls or media."
I would like to ask you for your judgment about the appropriate-
ness and wisdom of including such a prohibition, given the extent
to which, as I understand it, throughout the course of American
history, Presidents have often taken actions in order to, at least to
one degree or another, influence public opinion in our country.
Part of the responsibility of the President of the United States is to
maintain public support for policies in which they believe.
I recall, for example, that one of the factors that led FDR to give
the go-ahead for the invasion of North Africa was his feeling that
the American people needed to be shown we were capable of engag-
ing the enemy somewhere in order to sustain their morale.
During the Civil War, there were innumerable examples taken
by President Lincoln to influence public opinion in the north in
order to sustain support for his effort to preserve the Union.
So it strikes me that if you take a look at the long course of
American history, one of the lessons that emerges is that it is le-
gitimate for a President to take actions abroad to some extent in
order to influence public opinion at home.
And if that is the case, I wonder whether you think it would, in
fact, be appropriate to flatly prohibit any special activity, any
covert operation if it is intended to influence our political process-
es, public opinion, polls or media, particularly if the President is
obligated by law to inform the Congress about the activities.
Mr. CLIFFORD. I would delete that language from the bill. I think
it clutters up the bill.
Also, I can't imagine how in the world you would ever prove a
charge of that kind as to what was in the President's mind at the
time. Leave it out. It doesn't help us and just gives people some-
thing else to argue about.
Mr. SOLARZ. Thank you very much.
Chairman FASCELL. Mr. Berman.
THE WAR POWERS ACT VERSUS THIS LAW
Mr. BERMAN. Thank you, Mr. Chairman. And thank you, Mr.
Clifford, for sharing your thoughts with us on these issues.
I think initially you made a comment in response to a point that
Mr. Hyde made, I think it should be clarified. He referred to three
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covert operations-including the gathering of information before
the hostage rescue attempt under the Carter administration. It is
my understanding of the definition of covert activity in this bill
that that kind of intelligence gathering would not be a covert oper-
ation. It would be in the realm of intelligence gathering and would
not require, under this legislation, notification to Congress before it
proceeded. And I just didn't want to leave that part of it unre-
sponded to in the record, and I think Mr. Hyde may not disagree
with that, based on my conversation with him.
I would like to deal with the issues raised by Mr. Solarz a little
bit more, the War Powers Act versus this law. The President under
the War Powers Act is required to submit reports to Congress, very
similar to the notification requirement under this legislation in
terms of a direction to provide Congress with information, in a dif-
ferent fashion, in different situations.
Why, I am trying to understand, why would criminal penalties or
an automatic cut-off of funds is any more likely to ensure Presiden-
tial compliance with this law or would make his willingness to re-
spond to the mandates of this law any more likely? Is it pretty
clear that when Congress appropriated funds, if it attaches an un-
constitutional provision to that appropriation of funds, the Presi-
dent is under, I think, no obligation to manage his implementation
of that appropriation, the expenditure of funds according to an un-
constitutional prohibition, and I am wondering, under what process
would we ever activate the kind of test of the constitutionality even
with criminal penalties, even with an automatic cut-off of funds
provision?
Mr. CLIFFORD. I can see how that would come about. In the first
place, this question they raise about the constitutionality of this
bill that is now before this committee, I don't believe has any merit
to it.
Mr. BERMAN. I don't either.
Mr. CLIFFORD. As you begin to get into it, you begin to find that
there are all kinds of precedents. All that this asks for is notifica-
tion.
Keep in mind, it was the Congress that passed the National Secu-
rity Act of 1947 that created the CIA. And they put language in
there that would permit covert activities. Some of us back in those
years worked on the drafting of the act. And specifically it is in
there so that Congress has continued control over it. And as for
those who say you have no right to insert yourself into the question
of covert activity, I think they are unable to make a case in that
regard. You passed the law and put the provisions in there; notifi-
cation has been ruled over and over again to be proper by our
courts.
Now, in this particular instance, what we are saying is, "A"
must give notification within 48 hours. Now, if he doesn't do it,
then he must not under this law expend any funds for that particu-
lar covert activity. And if he is doing it, he is in violation of law.
Presidents have to be awfully careful about that. You know, for
instance, this is one reason that President Reagan has stayed com-
pletely away-he admits engaging in the Iran part of that matter
but has stayed completely away from the Contra part, the funds
flowing to the Contras. If you begin to get into the business of send-
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ing funds to somebody else without authority to Congress, without
appropriation of Congress, you run into a network of laws. You are
really in trouble.
So, I don't believe the President would want to take that risk of
expending Federal funds when the Congress has said to him, you
have no right to expend those funds.
Now, if those around him had knowledge of what has taken place
and knowledge of the violation of this law, you get a very quick
test of it because you get a grand jury. You present it to the grand
jury, they are indicted and you have a trial.
Mr. BERMAN. Who presents it to the grand jury?
Mr. CLIFFORD. The Federal Government.
Mr. BERMAN. Possible, certainly, but if it is the same department
that is advising the President that it is unconstitutional--
Mr. CLIFFORD. We are going through that right now.
Mr. BERMAN. Right.
Mr. CLIFFORD. We are going through that in the case against
Oliver North and Poindexter. And you see, the Justice Department
is supposed to prosecute it.
Mr. BERMAN. But they agreed to a special counsel.
I think that as a matter of politics, our leverage is greater in con-
vincing the President to abide by the law if the potential of the
fund cut-off or the criminal sanctions exist, but I am still curious
as to why there is less question about the constitutionality of this
provision, the 48-hour notice provision and the prior notification re-
quirement than there is about the reporting requirement under the
War Powers Act?
Mr. CLIFFORD. I believe that the other gets into a much broader
question. It is a clear foreign policy problem.
The President is handling the day-by-day affairs. He thinks that
the situation in the Gulf is such that it demands the presence of
U.S. Naval vessels. It is inherently within the ordinary powers of
the President so it is tougher to make the case.
I say that it is easier to make the case in this covert field be-
cause he should only be using it in the most restricted means
anyway, and a violation of that, I think, is easy to prove.
Mr. BERMAN. Thank you.
Chairman FASCELL. Mr. Levine.
Mr. LEVINE. Thank you, Mr. Chairman.
Mr. Clifford, let me also join my colleagues in expressing my ap-
preciation to you for your thoughtfulness and help before this com-
mittee.
I would like to stay on the same subject for one moment I then
have one other area that I would like to explore with you briefly.
Do I understand correctly, in trying to ascertain your response to
Mr. Berman's question, that the easier case, if you will, in terms of
constitutionality is this bill and the issues it raises versus the War
Powers, that basically you are saying we are here legislating an
area of intelligence oversight, and that these very intelligence func-
tions were spelled out pursuant to statute? That therefore exercis-
ing this oversight, and putting a deadline within the administra-
tion of this oversight procedure, becomes explicitly a part of the
delegation that Congress has already provided to the Executive
Branch? That this, therefore, doesn't move into the grayer areas of
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war and peace and the questions of war-making that are a part of
the War Powers issue? Or am I missing something?
That is how I interpret your response to Mr. Berman, in terms of
the narrower area that we are dealing with here. I want you to tell
me whether this is your testimony.
Mr. CLIFFORD. It is. And let me say parenthetically, that I think
Presidents should comply with the War Powers Act. Ever since it
has been on the books, Presidents have raised questions about it.
I think in those instances in which it is very clear and the degree
of hostility that has developed in an area becomes clear, I think a
President could well comply with the War Powers Act. But there
are all kinds of precedents now of those who haven't, and the area
becomes grayer and grayer with each passing year.
This one is sharper and clearer; the language is there. People
can understand why the Congress feels it should participate in
these matters, and I think that the President will be much less
likely to violate this present law than the past law.
As for this idea of giving timely notice, well, he can construe
that as giving any notice that he chooses. After this President
waited 10 months, he got an opinion from the Justice Department
that said 10 months is timely notice. Now, let's put a stop to that.
The British have a wonderful term: "That is plain rubbish." And
let's not go on with it anymore. Let's have it clear and concise and
the President will know what the rules of the game are.
TIME REQUIREMENT IMPOSING A TIME REQUIREMENT ON THE PRESIDENT
FOR NOTIFYING CONGRESS
Mr. LEVINE. That is the other area I wanted to explore with you
briefly. Obviously this President has interpreted "timely" to mean
anything that he wants it to mean, and, in fact, has interpreted it
to mean no notice at all. But I wonder whether there may be any
circumstances-and I would ask you to let me know if you think
there are any-where some middle ground might be appropriate
between 48 hours and timely notice.
Mr. Hyde, in his questions-and I unfortunately wasn't in the
room during his questioning of you, although I was here during his
questioning of the prior witnesses-continued to provide hypotheti-
cals in which he argued that 48 hours is simply too restrictive. And
my question to you is, are there any instances in your opinion in
which 48 hours is simply too restrictive, or is that rigid require-
ment appropriate in all circumstances, in your opinion?
Mr. CLIFFORD. We have to make a policy decision. Are we going
to leave it up to the discretion of the President as we have in the
past, or will we have a set of finite, specific rules? I come down
strongly in favor of the latter.
Keep in mind, the President wrote a letter to the Senate some
time ago in which he said, "I am going to go along with the 48-hour
rule," but he said-and I want to get the language exactly-he
said, "My obligation to notify the Congress is subject to two excep-
tions: I will not have to notify you in the event of extreme emer-
gency; second, I will not have to notify the Congress under excep-
tional circumstances."
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You don't have anything left. You don't go into a covert activity
unless it is an emergency. You don't go into it unless it is excep-
tional circumstances. That is the whole theory. But he is saying,
"If I encounter what we have encountered all through the years as
an opportunity for a covert action, I am not going to give you the
notice because I am going to claim, which I have a right to do
under this rule, that I find that there exist exceptional circum-
stances."
Mr. LEVINE. Let me follow up. I understand that this language
that is presented by the President and that is being suggested as
an amendment opens the door so widely that we end up back at
essentially timely notice. But my question is not with regard to
that particular language. Rather, it is whether in your opinion
there are any circumstances which would justify more than two
days as a requirement?
Mr. CLIFFORD. I do not know of any. This doesn't have to be com-
plicated.
An emergency comes up. The President says, "I must meet that
emergency. ' The President gets on the phone. Maybe the first
thing he would want to do would be to call the Speaker of the
House and the Majority Leader in the Senate and say, "I have got
a very tough situation here. You both happen to be in town; come
over right away." Or maybe he calls the Chairman of the Senate
Intelligence Committee and of the House and says, "Can you just
come over right away? I want to get at you."
And so he takes it up with them and he explains it to them, and
they say, "All right. Go ahead and comply. Give us notice within 48
hours, keep us posted and we will work with you." They might say,
"We are with you 100 percent. If this is what you think should be
done, we will support you all the way."
Now, that is the wary this can work and the way it is supposed to
work. But what I don t want to have happen-as we have learned
since this bill was passed 41 years ago, and we started on it in
1945-is that you leave it up in some way to the discretion of the
President. Lets have the President clearly in front of him the ne-
cessity of getting in tough, let's say, with a Group of Eight or nug-
get it with a Group of Four. If all Four are not in town, then which-
ever ones of the Four are in town can get right over there. They
would be there in a half hour. So that I do not see any trouble with
it.
Mr. LEVINE. Thank you, Mr. Clifford.
I will be happy to yield to the gentleman from New York.
Mr. SOLARZ. Thank you.
The argument was advanced by the Director that a situation
could develop in which Congress was not in session and where it
simply wasn t practically possible to consult with the eight Mem-
bers specified in the bill within 48 hours. This becomes potentially
even more of a problem if we were to amend the legislation to in-
clude your suggestions that penalties be added to the bill for non-
compliance on the part of the -Executive Branch with respect to no-
tification within 48 hours.
What would you think of a further amendment to the legislation
which would require the President to make a good-faith effort to
notify the eight Members designated in the bill within 48 hours so
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that if a situation developed where it was simply not possible for
the President to reach all of them because Congress wasn't in ses-
sion, that under those circumstances the President would be re-
lieved of a potential criminal liability for having failed to notify
one or more of the Group of Eight in spite of the best efforts on his
part to contact them?
Mr. CLIFFORD. I would consider it a complication. I think reason
must prevail here.
I know what I would do if I were the President and I felt I had to
move and all eight Members of the Group of Eight were out of town;
I would sign a finding and I would have it, by hand, delivered to
the office of each one of the Eight and I would have the operator on
the telephone at the White House find, start in and find one of the
eight, maybe find more than that, and say, "A finding has been de-
livered to the office of all eight Members of the Group of Eight. I
want to notify you that you might want to get back here and look
at it."
I would rather depend on a rule of reason and men working to-
gether than begin to put language into it that in any way softens
the requirement of the President to give this notice.
Mr. SOLARZ. Thank you, sir.
Chairman FASCELL. Mr. Clifford, I want to thank you very much.
You have continued to be of great service to this committee and to
Congress and to the country. You have devoted a lot of time and
attention to this matter, and we are grateful to you.
Mr. CLIFFORD. Thank you, Mr. Chairman.
Chairman FASCELL. This committee stands adjourned subject to
its return.
[Whereupon, at 1:07 p.m., the committee adjourned, subject to
the call of the Chair.]
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INTELLIGENCE OVERSIGHT ACT OF 1988
THURSDAY, JUNE 16, 1988
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
Washington, DC.
The committee met, in open markup session at 1:30 p.m., in room
2172, Rayburn House Office Building, Hon. Dante B. Fascell (chair-
man) presiding.
Chairman FASCELL. The Committee will come to order.
We meet today to continue the Committee's consideration of H.R.
3822, the Intelligence Oversight Act of 1987. On Tuesday, the Com-
mittee received testimony from the Director of the Central Intelli-
gence Agency and the Under Secretary of State, Michael Armacost,
followed by the distinguished statesman and former Secretary of
Defense, Clark Clifford. Each witness on Tuesday and again today
brings a distinct and useful perspective, based on many years of ex-
perience, and will undoubtably contribute to a better understand-
ing of the important issues with which the Committee must deal.
Before introducing our distinguished witnesses I would like to
make a brief comment on the prior notice provision of H.R. 3822
which has generated so much controversy. This provision is in my
view a modest adjustment to the present law. It sets forth clear pa-
rameters for concerning Congressional notification to a restrictive
group in Congress. It does so without restricting the ability of the
President to respond rapidly in emergency circumstances. Finally,
I' believe that the prior notice provision gives the President the
benefit of Congressional counsel on important decisions which
impact on our foreign policy and national security so as to build a
consensus on covert operations. It seems clear to me that H.R. 3822
is a modest response to recent events.
Mr. Broomfield.
OPENING STATEMENT OF CONGRESSMAN BROOMFIELD
Mr. BROOMFIELD. Thank you, Mr. Chairman. As you know, at our
last hearing I explained the reasons why I cannot support this bill
in its present form.
There are many constructive elements in the bill which have
been extensively discussed between the Administration and Con-
gress.
Unfortunately, the bill contains the ill-advised requirement that
covert operations must in all cases be notified to Congress within
48 hours. I believe this provision to be unconstitutional. I also be-
lieve that as a practical matter it would impede the President in
his execution of foreign policy and could prevent our allies and
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friends abroad from cooperating fully with us in difficult circum-
stances.
I am especially glad today to have Secretary Carlucci here to
give his views on the bill, particularly the 48 hour provision. Secre-
tary Carlucci was instrumental in reforming the operations of the
National Security Council staff. It was he who implemented the
recommendations of the Tower Commission, by taking the NSC out
of covert operations.
Secretary Carlucci also played an important role in improving
the Administration's procedures to approve covert action plans and
notify Congress of them. As National Security Advisor to President
Reagan, he coordinated the Administration's response to congres-
sional concerns and assisted in the preparation of the President's
new National Security decision directive, the NSDD, on this sub-
ject.
I believe the Secretary's testimony will demonstrate that the Ad-
ministration has already taken corrective action to address the con-
cerns about notification to Congress that were raised as a result of
the Iran/Contra affair.
The President's directive specifically addresses the "rare extraor-
dinary circumstances" in which notice must be deferred beyond 48
hours. In such cases, the President is committed to review such a
decision with his senior advisers every ten days. I am looking for-
ward to Secretary Carlucci's testimony on these points and I am
also looking forward to asking the Secretary whether inclusion of
my proposed prepared amendment-which contains a very high
legislative standard for deferring notice-would cause the Presi-
dent's senior advisers to recommend that he approve the Act.
Chairman FASCELL. Mr. Secretary.
STATEMENT OF HON. FRANK C. CARLUCCI, SECRETARY OF
DEFENSE
Mr. CARLUCCI. Thank you, Mr. Chairman, Members of the Com-
mittee. I am very pleased to be with you today. I do have a pre-
pared text. With your permission, I will submit that for the record
and make some brief comments.
Chairman FASCELL. Without objection, the full statement will be
included in the record and you may proceed.
Mr. CARLUCCI. It seems to me, Mr. Chairman and Members of
the committee, that the Iran/Contra report was very wise in noting
that democratic government is not possible without trust between
the executive and legislative branches, and between government
and the people. There is no question that the Iran/Contra affair
represented a setback in that critical element of trust.
The real issue is how we restore the trust. I would submit to you
today that legislation which lays claim to the prerogrative that
presidents, and I emphasize the plural, presidents, firmly believe is
theirs, is hardly the way to restore trust between the executive and
legislative branches.
Of course, we all want to have a tight system that governs specif-
ic activities. We all want oversight. I think congressional oversight
has proved itself to be valuable throughout the years.
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But who among us can say that some future president will never
be faced with the kind of situation where he may have to delay no-
tification of a special activity to the Congress beyond 48 hours?
And we have a specific case, which I am sure the committee has
heard about. I will mention it simply because I lived through it. I
was there when we said, good luck to our people who went in and
got the hostages out of the Canadian Embassy, and the Canadian
Government, as you are well aware, said that they would not allow
us to exfiltrate potential hostages if we were to notify, if we
intended to notify the Congress.
Now you and I can say that is wrong, you and I can say the Con-
gress is worthy of trust. That is not the issue. The issue is what
other governments believe, and covert action in almost every case
requires the cooperation of some foreign government; and if the Ca-
nadian Government, which is a government closest to us and best
understands our system, makes such a demand on us, what are
governments less likely to understand our system likely to do in
the future?
In fact, had this legislation been law at the time, President
Carter would have been faced with an impossible dilemma. It is le-
gitimate, of course, for the Congress to ask how you prevent future
Iran/Contra affairs. I would simply note, as Mr. Broomfield has
done, that the President took prompt action when the Iran/Contra
affair was brought to his attention. He changed the NSC adviser; I
in turn turned over a substantial amount of the NSC staff. The
NSC was banned from participating in covert action activities. We
created an office of general counsel in the NSC, which to this day
is functioning extremely well.
We undertook a comprehensive review of existing covert action
programs. The President also sat through a review program-by-pro-
gram, and we worked together with the Senate, because the House
elected not to work with us on this. We worked together with the
Senate in drafting an NSDD that tightened up the procedures on
covert action activities, including such things as no retroactive
findings, written findings and, most importantly for the issue at
hand, a requirement where in it the President did not notify the
Congress in 48 hours, the NSPG was to review the situation and
review the finding every ten days.
These seem to be appropriate corrective actions. The Iran/Contra
report said that the laws and procedures which exist are adequate
to the task, providing of course they are observed. Both the Iran/
Contra report and the Tower Commission indicated that the failing
was a failing in people.
Corrective action, as I indicated, was taken. No amount of legis-
lation can correct errors of judgment on the part of people, but it
can stop a President from taking action which he believes neces-
sary in the national interest.
I think you need to ask yourselves, will a presidential veto in-
crease or decrease the degree of trust between the Congress and
the Executive Branch? I would submit that what you will do is
create a contentious constitutional argument that will last
throughout the years, very similar to the argument we are current-
ly experiencing with regard to the War Powers Act.
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I would ask: Is this worth the gain? In fact, to me the gain is not
at all clear.
Before I close, Mr. Chairman, let me mention one specific. I
notice that Director Webster said that we should not deviate from
existing practice as to what constitutes a special activity. I think
that is particularly important, and it is absolutely vital as far as
the military is concerned.
Tactical military activities must be distinct from covert action
activities. We do not want to have a finding every time we deceive
the U.S.S.R. on the movement of weapons or forces. When I testi-
fied before HPSCI, Subcommittee Chairman McHugh assured me
that there was no intention to include under this bill military ac-
tivities, but I emphasize the point so there will be no misinterpre-
tation.
Mr. Chairman, as Mr. Broomfield has pointed out, I lived
through the lessons of Iran/Contra, I saw the pain it caused the
President, I saw the mistrust between the Executive and Legisla-
tive Branches, and I and my colleagues worked very closely with
the Congress to correct the situation and heal the wounds.
We are now nearing a period of presidential transition and in my
judgment we need to pass on a healthy legacy instead of one that
could plague us for years to come. I urge you not to create a consti-
tutional confrontation through this legislation.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Frank C. Carlucci follows:]
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PREPARED STATEMENT OF HON. FRANK C. CARLUCCI, SECRETARY OF DEFENSE
Mr. Chairman, I thank you and the Committee for the opportunity
to exchange views on the proposed Intelligence Oversight Act of
1988. The subject matter of H.R. 3822, the degree of Presidential
interest, and my prior position as National Security Advisor
during the period when important NSC reforms were made which
bear directly on these hearings, bring me here on behalf of the
Administration.
Today, I would like to offer the Committee my thoughts on
the proposed legislation, bearing in mind the circumstances
which prompted the Congress to consider new legislation, and to
ask whether this bill would improve the situation. I strongly
believe that this legislative proposal is the unhappy result of
a breakdown in consultation between the Executive and Legislative
branches. It serves no purpose to cast blame. An attitude of
mistrust on both sides complicated the kind of confidence in one
another which our Presidents and our legislators need in order
to carry out their respective Constitutional duties effectively
and successfully.
The Congressional Iran-Contra report was right when it said,
"Democratic government is not possible without trust between the
branches of government and between the government and the people."
(p. 20) Those relationships suffered a setback in the Iran-Contra
affair, as actions were concealed from-Congress and, in one key
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instance, from the President himself. An unhealthy lack of
shared purpose between the Congress and the Executive -- to be
blunt, an adversarial relationship -- kept key actors on each
side from sharing confidences and building a lasting consensus
which would apply to all of the tools of statecraft which support
national foreign policy objectives.
I can think of no step by the Congress which would do more
harm to the process of rebuilding an atmosphere of trust and
candor between the branches than unilaterally laying claim to
prerogatives which the President firmly believes are vested in
the Executive by the Constitution. The distinguished Members
of this Committee are particularly well-versed in the nature
of exigencies abroad affecting U.S. interests and the inherent
limits on our ability to act effectively beyond our borders.
The founders of this country similarly recognized that compel-
ling circumstances could require.the Executive to act on behalf
of the American people. Who among us can say with absolute
certainty that no future President will ever be faced with a
situation requiring that notification of-a covert action to the
Congress be delayed beyond 48 hours?
One recent example, which the House and Senate intelligence
committees have both discussed in their hearings on the proposed
Intelligence Oversight Act of 1987, is the assistance which
Canada rendered to the United States in 1980 in helping to smuggle
six American hostages out of Iran. As one Member of Congress
who served on the House Permanent Select Committee on Intelligence
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at the time has testified, Canada had one request in offering
its cooperation: that the President not tell the Congress. Was
this unreasonable? You and I might say "yes," believing that the
Congress could be trusted to protect this information. But from
Canada's perspective, clearly it feared having its own Embassy
in Teheran laid siege, as our own had been, if its assistance
became known. President Carter authorized a covert action to
get those six Americans safely out of Iran. He did not tell the
Congress until after the fact. Some members disagreed but others
argued that President Carter had done the right thing.
This example helps us to separate politics from process, and
to understand how the founding fathers did the same thing when
they designed our Constitutional separation of powers. Virtually
all Americans would regard the rescue of six citizens in that
situation as a goal justifying covert action, and they would
view the Government of Canada as a worthy partner in that endeavor.
Canada's demands for extreme secrecy would also appear reasonable,
when we recall the climate of danger in Teheran at the time.
Yet the cold fact remains that if H.R. 3822 had been the law of
the land in 1980, President Carter would have had to say "thanks
but no thanks" to Canada. What would have happened to those six
Americans, who were separated from the fifty-two Americans held
in the American Embassy in Teheran, no one can say.
So there is more to the 48-hour notification issue than abstract
theory. President Reagan's policy, as laid down in NSDD 286, is
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to do precisely what H.R. 3822 would compel him to do -- to
notify the intelligence committees of covert action findings no
later than 48 hours after they are signed. If this policy cannot
be followed for exigent reasons, the NSPG is required to review
the situation every ten days. We believe the NSDD works well
with the current statutory framework governing intelligence
activities. President Reagan also strongly believes that no
President can accept a statute that purports to impose limitations
on a power which the Constitution vests in the Executive and which
has rested with the Executive since the founding of our nation.
I respectfully urge the members to reflect on the wisdom of
the President's position and, beyond this, to consider the effect
of provoking a Presidential veto on legislation governing the
entire realm of intelligence activities. Will this really improve
the situation, or will it simply add to the atmosphere of mistrust
in a well-meaning effort to be certain that never again will an
admitted mistake be repeated? If trust, candor and accountability
are the remedy to the problems which brought about the Iran-Contra
affair -- as I believe they are -- the Congress risks undermining
all of those goals, and reintroducing instead an unhealthy adver-
sarial basis to the oversight process for years to come, if it
incorporates a fundamental Constitutional disagreement into the
law.
I have dwelt on this one central issue because I hope to
persuade the members that the position taken by President
Reagan and his immediate predecessors is reasonable and correct.
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Appropriate action was taken as soon as the President became
aware of the true nature of what had transpired in the Iran-
Contra affair. A new National Security Advisor was brought in.
Judge Webster was nominated as Director of Central Intelligence.
President Reagan prohibited the National Security Council staff
from participating in covert action, and he upgraded the position.,
and authority of the NSC Legal Advisor.
The President directed that findings be set in writing prior
to initiation of the covert action. He ordered a full review of
ongoing covert actions, and revised or terminated any which were
not seen to be necessary or effective. Under a "sunset" clause,
Presidential authority for a covert action now expires after one
year unless he revalidates it. These and other measures have
been praised by the sponsors of the companion Senate legislation.
This is not surprising since we consulted with the Senators as
we developed our guidelines.
This is the framework currently in place for the management
of covert action within the Executive Branch. Does it have the
permanence of a statute? No -- admittedly not. The next
President will be entitled to set up his own system of managing
covert action, consistent with existing law, as will the President
after him. However, if government is to function effectively as
well as responsively, there must be a line where the statutory
framework ends and the President's internal management responsi-
bility begins. No two Presidents are alike in their management
styles. No two Administrations have used identical procedures
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and mechanisms for recommending options to the President or
implementing Presidential decisions. We must allow our Presidents
to manage, and each President must be allowed to manage his
Administration in the manner which suits him best.
Let us remember that the failures of the Iran affair were
human and managerial. No statute can prevent these mistakes.
The Congress' Iran-Contra investigation led to the conclusion
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." (p. 423) With specific
reference to the existing "laws and procedures to control secret
intelligence activities, including covert actions," the congres-
sional report concluded that, "Experience has shown that these
laws and procedures, if respected, are adequate to the task. In
the Iran-Contra Affair, however, they often were disregarded."
(p. 375)
offer no protection from those who would disregard them. Nor
would the public good necessarily be served by a framework so
restrictive that the talents and initiative of law-abiding public
servants were stifled. How much better it would be to have a
procedural and statutory framework that heals the wounds, provides
for reasonable safeguards, encourages an atmosphere of trust and
candid consultation between the branches, and brings the best
out of our intelligence professionals and public servants.
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Mr. Chairman, permit me to offer the Committee my vision of
such a framework. It begins with the observation, developed
over several years working with intelligence matters, that
statutes and Executive orders, no matter how well-crafted,
can never anticipate every future situation -- nor should they
attempt to do so. Inevitably, the intelligence community
faces unforeseen circumstances, challenges and requirements,
and must come to terms with them as best it can within the
existing framework.
Over time, mutually accepted understandings and practices
develop in the community and between the branches which become
part and parcel of the regulatory framework. Indeed, this is
what has happened since the enactment of Hughes-Ryan Amendment.
I note that the Senate Select Committee on Intelligence has
recognized this, fact. Its committee report on S. 1721 states
that the definition of the term "special activity," as used in
the bill, "is intended, as written, to reflect and incorporate
existing law and mutually-agreed upon practice." (p. 38)
Judge Webster recently testified before the House Intelligence
Subcommittee on Legislation that a deviation from the existing
practice regarding what constitutes a special activity could
result in Executive branch agencies having to obtain findings
for categories of activities that do not require findings today.
I support Judge Webster's position that the Congress should not
change the existing practice within the Executive branch on
which activities are governed by a Presidential finding.
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As Secretary of Defense, I have a particular concern in this
regard that tactical military activities continue to be understood
as distinct from covert intelligence actions. This is not a
question of what the Congress should be told, but rather a question
of which activities should require a Presidential finding. For
example, should a finding be required every time we attempt to
deceive the Soviet Union on the movement of nuclear weapons or
the capabilities of our own military forces? Clearly not,
according to the current definition.
I hope that the members will recognize the importance of
preserving the body of mutually-agreed upon practice between the
branches, even as we look for new ways to prevent the mistakes
of the recent past from recurring. I emphasize this because I
believe it is important that the House affirm that it is building
on the existing foundation of understandings, as the Senate has
done. Surely we wish to avoid the paralysis which would plague
Executive departments and agencies if they were suddenly unsure
whether to seek Findings and report to the intelligence committees
on categories of activity which previously have not been viewed by
either branch as requiring such treatment.
The present system of congressional committees, in some measure,
parallels the Executive branch division of labor, and I am confident
that neither this Committee nor any other intends for H.R. 3822
to change that. In this regard, I was gratified by the verbal
assurance I received from Chairman McHugh, when I testified
before the House Intelligence Subcommittee on Legislation in
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March, that activities traditionally regarded as military.
activities are not intended to be subject to the covert action
procedures delineated in H.R. 3822.
In sum, Mr. Chairman, I come before this Committee as an
advocate for learning the lessons of the Iran-Contra matter
and restoring integrity, accountability -- and yes, vitality to our intelligence activities, which are a small but critically
important instrument of our national power., However, I urge
the Committee to step back from the immediate context, as
did the founding fathers, and consider the value:and necessity
of an Executive which can act for the nation in extremis. Ask
yourself whether the most honorable and talented of our young
will join our intelligence services if the bureaucracy is mired
in an atmosphere of uncertainty and recrimination. Think about
how governments and individuals in other countries will regard
the risks of cooperating with the United States if the Executive
and the Congress are perpetually at loggerheads on these sensitive
matters.
We will not put the mistrust which caused the Iran-Contra
affair behind us until we trust each other again. We have laws
and regulations in place today which are quite satisfactory.
The enormous repercussions of the Iran-Contra matter have made
a lasting impression on officials throughout the intelligence
community that will serve to prevent a recurrence. I urge the
Committee to consider the very real adverse consequences of
attempting to impose a new and inflexible statutory framework on
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our Presidents and our intelligence community. Let us instead
test each other's good faith and professional.sm, and give
responsible officials in both branches a chance to earn each
other's respect by giving real meaning to the concept of
consultation.
Not only does such an approach have the advantage of bringing
the best out of our public servants: it is the way the founding
fathers intended the.system to work.
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Chairman FASCELL. Thank you, Mr. Secretary. The bill as report-
ed out of the Intelligence Committee and submitted to us, now
pending before us, makes clear and addresses the issue that you
just raised with regard to military activity. I don't think, it is cer-
tainly not my intent, and I think the bill is clear we don't intend to
have a finding, report or anything else, with respect to military ac-
tivities under the normal powers of the President who is Com-
mander-in-Chief of the armed forces of the United States.
Mr. CARLUCCI. I appreciate that, Mr. Chairman.
Chairman FASCELL. Let me also add, I want to express my com-
mendation to you as one citizen to another for your continued
public service and your willingness to take on tough jobs, coming
out of private industry to take on a difficult task at a time when
the country needed you, and you did a good job with that, and now
you have moved on to another difficult position which seems to
have about as many prickly problems as the one you left, and I am
sure however, that you will address that in the usual manner in
which you do, which is forthrightly and without fear or favor.
And that would be very important for the Department of Defense
it seems to me at this time.
The issue though on notice, which I think is a modest change in
the law which has created so much consternation both with CIA,
the Administration, and you, seems to me to be rather modest, but
nevertheless I recognize and respect the difference of opinion that
exists but I submit, Mr. Secretary, that it has raised a different
issue which has been here all the time and which, for one reason
or another, we have never confronted directly, maybe because we
just haven't had to or we didn't want to.
And that is the whole question of either special activity or covert
operation. I want to be sure on the record we are speaking the
same language, so when you are talking special activity, you are
referring also to covert operation and it is. within the purview of
the definition now agreed upon in this legislation. Am I correct?
Mr. CARLUCCI. That is correct.
Chairman FASCELL. Now, the issue that I see that has been
raised, Mr. Secretary, and we have had testimony from the director
of the agency that the special activities part of the covert action
only takes up 3 percent of their total time or resources or whatever
the measuring stick would be.
But, we certainly don't want to in any way interfere with 97 per-
cent of the activity, which has to do with the very important job of
intelligence gathering, collection, dissemination, analysis, and all of
the things that the intelligence community must do.
So the question comes up then: Under what circumstances, under
what conditions, if any, should a special activity be entered into or
a covert operation, and how is that decision made in the United
States Government?
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It was authorized by Congress in the intelligence law, now I am
hearing from people, Congress can't take that away. Well, I am of
the opinion that Congress can. But that is an argument that can be
made at another time because there is not legislation pending to
revoke the authority by Congress for the President to carry out a
covert activity or a special activity through the CIA, which is basi-
cally an intelligence gathering institution.
So the issue that is raised still comes back to those very rare 3
percent of the cases where this country wants to do something to
implement its foreign policy and do so in a secret manner, without
attribution, and to do it safely with protection of the personnel and
the objective, and how in a democratic society do we manage to do
that without running into the problem that we ran into?
It seems to me that notice to four people or eight people in the
Congress can be equally trusted with knowledge of 200 people in
the Administration who have to make the decision with regard to
the matter.
But, I don't ask you to comment on that, in other words, that it
is readily conceivable if we are going to have trust, we have to
have trust on both sides.
Mr. CARLUCCI. I quite agree with that, Mr. Chairman. I would
like to comment, though, because I think you have helped to put
covert action in perspective. I think it has been greatly overblown
as a foreign policy tool. It is a minor part of the agency's activities,
and there should be certain criteria for covert action. The most im-
portant of which is that it cannot be a substitute for policy. You
have to have the policy first and you have to have clearly defined
goals, and then you look at all the instruments to implement that
policy, and covert action in my judgment should be the last instru-
ment that you look at, and then that should be tied to specific
goals and there should be a sunset provision as we wrote into the
NSDD.
How do you handle the problem of public accountability? I think
we struck an ingenious solution through the congressional over-
sight process, which really isn't all that old. It has worked well.
In my days in the CIA I enjoyed working with the oversight com-
mittees; they brought a lot of wisdom to bear.
The only issue we are talking about here are exceptional circum-
stances, rare circumstances; "rare and exceptional" is the phrase
that is used in the NSDD, where the President, some future Presi-
dent for some reason or other cannot notify the Congress within
any specific time frame. The Canadian Embassy incident is a per-
fect example of how that could happen.
In fact, there have been only three instances where the Congress
was not notified prior to the initiation of the activity, one being the
rescue operation, the other being the Canadian Embassy operation,
and the third being Iran/Contra.
So it would be only in very rare circumstances that we are talk-
ing about. But we should not deprive the President of that author-
ity. Then also there is the constitutional argument that I made-
that is to say, let's not set up a constitutional confrontation.
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CRITERIA FOR INITIATING A COVERT OPERATION
Chairman FASCELL. Well, we didn't do that, Mr. Secretary, the
constitutional confrontation was set up by the founding fathers in
setting up a tripartite form of government with a judiciary, Con-
gress, and Chief Executive, and we have been living with it now for
over 200 years, and I dare say we can keep on doing it, but we have
got to discuss these matters intelligently and with good humor and
try to arrive at the best judgment we can with respect to our activi-
ties.
Now, would you agree that a covert operation, if we are going to
undertake it and commit the integrity and the sovereignty of this
government and our people, that we ought to start out, as you say,
with a clear policy objective, that is number one, we are agreed on
that; number two, you want to be successful, don't you?
Mr. CARLUCCI. Yes, sir.
Chairman FASCELL. Number three, if you are going to bypass the
Congress in the manner in which you suggest, you had better be
able to act fast.
Mr. CARLUCCI. Well, I don't know--
Chairman FASCELL. The operation better be over quickly because
it is not going to be secret very long.
Mr. CARLUCCI. That is probably true. You made an assumption,
you made an assumption in your earlier statement that 200 people
in the Executive Branch--
Chairman FASCELL. Well, 150.
Mr. CARLUCCI. That really depends on the nature of the action.
Chairman FASCELL. I will settle for 25 as against eight, whatever
number. The number is meaningless.
Mr. CARLUCCI. With something like the Canadian operation, the
number is indeed very small and people take their responsibilities
pretty seriously. We have a leaky government, I am prepared to
grant that.
Chairman FASCELL. I take it seriously, too. I wouldn't want my
life jeopardized because of an article that appeared in the newspa-
per or somebody didn't have sense enough to keep their mouth
shut, I would not want that either, but all I am saying is if you are
going to undertake a covert action, don't you agree it better be
acted upon pretty quickly because it will soon become public
knowledge.
Mr. CARLUCCI. Some of them become public knowledge. I have
had experience with highly successful covert action operations that
have not leaked. And the term "covert action" has taken on some-
what of a pejorative meaning. I have seen covert action programs
that in a number of instances have helped the functioning of demo-
cratic processes.
Chairman FASCELL. I am sure that is true, Mr. Secretary. Let me
lay out another criterion.
Are we agreed that the CIA should not carry out a military oper-
ation?
Mr. CARLUCCI. By and large. They do have-there are cases
where they get involved in what are called paramilitary types of
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operations, but by and large that should be a function of the Penta-
gon, yes.
Chairman FASCELL. Well, I have got some more criteria which I
think we could reach common ground on, but basically they would
be the criteria upon which reasonable people would engage in a
special activity or covert operation, and I would like to explore that
at length, perhaps at another time, but I have taken enough time
now, and I will yield to my colleague, Mr. Broomfield of Michigan.
THE AMOUNT OF FLEXIBILITY THE PRESIDENT SHOULD HAVE IN
NOTIFYING CONGRESS
Mr. BROOMFIELD. Thank you, Mr. Chairman.
Mr. Secretary, getting right to the crux of this whole bill, the key
question is are we going to give any flexibility at all to the Presi-
dent or are we going to have a rigid enforcement of legislative pre-
rogatives on every covert activity? I find it quite interesting that in
the last 12 years under two administrations, as I understand, there
have only been three instances in which knowledge of covert oper-
ations has been kept from the Congress.
Mr. CARLUCCI. That is right.
Mr. BROOMFIELD. That seems to me to be a very, very exceptional
situation. Let me ask you at the outset, wouldn't you say this is
veto bait, if this language is left the way it was reported out of the
Intelligence Committee?
Mr. CARLUCCI. I have talked to the President about this legisla-
tion on several occassions and I have no doubt that he would veto
it if it came to him in its current form.
Mr. BROOMFIELD. Mr. Carlucci, in the President's National Secu-
rity Decision Directive, which you helped draft, the President com-
mitted himself to notifying Congress in virtually all cases. In addi-
tion, the President and his senior advisers would review a decision
not to notify Congress every ten days. Is that not true?
Mr. CARLUCCI. That is correct, sir.
Mr. BROOMFIELD. As I mentioned earlier, I will introduce an
amendment next week to incorporate a very high standard into the
bill which would nevertheless permit the President to defer notifi-
cation in certain rare instances.
Speaking as a representative of the Administration, do you be-
lieve the Administration could accept a very high standard provid-
ed it allowed some flexibility?
Mr. CARLUCCI. I think the Administration could accept a high
standard providing it allowed some flexibility. It really depends on
the wording of the standard. I would want a standard that could
allow another Canadian Embassy rescue operation, for example.
Mr. BROOMFIELD. In what kind of cases do you believe the Presi-
dent must retain the power not to notify Congress within 48
hours-a case like the Canadian caper?
Mr. CARLUCCI. That is probably about as good an example we
have right now.
Mr. BROOMFIELD. Isn't it possible a President could go through
four or five years without exercising this kind of flexibility?
Mr. CARLUCCI. I would anticipate that would be the case.
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Mr. BROOMFIELD. I want to assure you I intend to work with your
legal advisers in trying to come up with legislative wording for an
amendment that would meet with the approval of the President. If
that is changed, would the President not in all probability sign the
bill?
Mr. CARLUCCI. Let me point out we do have wording in the
NSDD and that is "rare, extraordinary circumstances." I submit
that itself is a high threshold.
Mr. BROOMFIELD. If the amendment followed the word of the
NSDD?
Mr. CARLUCCI. I am sure that would be acceptable.
Mr. BROOMFIELD. We will be working with you on this.
Thank you, Mr. Chairman.
Chairman FASCELL. Mr. Solarz.
IRAN-CONTRA AFFAIR EXAMPLE
Mr. SOLARZ. Thank you very much, Mr. Chairman.
Mr. Secretary, it is good to have you with us. It may well be true,
as my very good friend from Michigan pointed out, there were only
three instances in the last eight years in which the President de-
clined to notify the relevant committees of a covert operation in a
timely fashion.
But it is also true that one and perhaps two of the three covert
operations ended up disastrously for the United States. I have in
mind the Iran-contra affair and possibly the rescue mission for the
hostages.
It is entirely possible that if this law had been in place and the
President had in fact been obligated to report to the eight leaders
of the Congress, that one or more of them might have persuaded
the President that this was an unwise action to initiate, thereby
sparing the country the consequences of these failed missions.
Mr. Secretary, we have heard from Director Webster, now we
have heard from you and we have heard from others. As I under-
stand it, your objections to the provision in the legislation which
would require notification within 48 hours, if it wasn't possible to
provide notification prior to the commencement of the covert oper-
ation, are based essentially on three arguments: first, that it could
conceivably lead to leaks which would compromise the operation,
possibly even result in the loss of life; second, the Canadian conun-
drum which you pointed to, a situation in which the willingness of
another country to cooperate might be lost because they would not
want to participate in the operation if they knew Members of Con-
gress had to be informed; and, third, your constitutional objections
on the grounds this is an unconstitutional infringement upon the
powers of the President.
Let me leave the constitutional question aside for a moment and
focus on the first two.
First, with respect to leaks, you served with great distinction for
several years as Deputy at the CIA, then at the NSC, now as Secre-
tary of DOD. Are you aware of any instances in which there were
leaks, from either the Intelligence Committees or the leaders of the
House, of covert operations about which they had been briefed?
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THE PROBLEM OF LEAKS, WHEN TOO MANY ARE CONSULTED
Mr. CARLUCCI. Mr. Solarz, I would prefer not to get drawn into
that kind of a discussion.
The candid answer to your question is that I know of instances
where there has been a substantial chance that the leak came from
congressional committees, but I think that is irrelevant.
You will notice I don't even mention, in my prepared testimony
or in my opening remarks, the question of leaks. I don't think that
is the major issue. I trust the Congress. I quite agree that the Exec-
utive Branch is just as leaky as the Legislative Branch, or the Con-
gress is just as trustworthy as the Executive Branch, whichever
way you want to put it.
Mr. SOLARZ. I am pleased to hear that. The fact is, leaks are a
problem. They are a problem on the Hill, they are also a problem
in the Executive Branch, and we both have to find better ways to
deal with it.
So your objections are really two: the constitutional objection
and the Canadian conundrum objection.
OTHER GOVERNMENTS OBJECTING, IF OTHER PEOPLE ARE REQUIRED TO
BE INFORMED
Mr. CARLUCCI. Yes, the Canadian conundrum and the constitu-
tional objection, although I am not prepared to make the constitu-
tional argument-Mary Lawton can do that-but from my perspec-
tive, the idea of a constitutional confrontation and the damage that
can do between the Executive and Legislative Branches.
Mr. SOLARZ. Let me focus on the Canadian conundrum-that is
more eloquent than "Canadian caper." There is no pride of author-
ship here; either will do.
We are talking about the situation in which we successfully at-
tempted to retrieve some of our people from Iran with the coopera-
tion of Canada, and I gather the Canadians would only cooperate if
the Congress weren't informed.
I have two points on this that I would like to put forward and
ask you to respond to.
The first is that I have a feeling that, particularly with the Cana-
dians, if this law had been on the books and the President could
have said to the Canadian Prime Minister, "Mr. Prime Minister, if
we were proposing to share information about this operation with
435 Members of the House and 100 Members of the Senate, I would
certainly understand your concerns, and I wouldn't propose the op-
erations myself if we had to do that. But we are talking here about
sharing the information with eight leaders of the Congress, our
most senior respected Members. They have been informed about
the most intimate secrets of our nation; I have them at the White
House weekly for top-level briefings. I have as much confidence in
them as people in my own Administration and I don't think you
have too much to worry about." It strikes me that in the face of
such representations there is a very good chance the Canadians
would have said, "So long as it is limited to those eight, we can
accept it."
The second point I would like to make, Mr. Secretary, is this.
Presumably the Canadian concern was based on the fear that if
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Members of Congress, even limited to the top eight, were informed,
that somehow or other word might leak out. But if that is the case
it is equally plausible that they might have been concerned, or if a
similar situation develops in the future another country might be
concerned, that if the Secretary of State or the Secretary of De-
fense or other top-level members of the Administration who serve
on the NSPG--
Mr. CARLUCCI. National SPG.
Mr. SOLARZ [continuing]. Are informed, there might be leaks as
well. After all, in most situations if the Secretary of State, for ex-
ample, is informed, he usually goes back to his Department, I
would imagine, as we were told by Mike Armacost, and may call in
the people who deal with this area or this problem to get their
advice.
I assume you probably, with one or two trusted subordinates, do
the same so you can get the wisdom of your Department on this
issue.
If the Canadian Prime Minister or any other national leader
were to say to the President in the future, "Mr. President, I am
willing to cooperate with you on this special activity or covert oper-
ation, but only if you don't say anything to your Secretary of De-
fense and/or Secretary of State, because, sir, no matter how much
you respect them, I must tell you I have no confidence that they or
their Departments can keep a secret," I would imagine the Presi-
dent would say to him under those circumstances, "Mr. Prime Min-
ister, if that is the case, then I am afraid we are not going to be
able to cooperate, because I am not prepared to limit my ability to
consult my primary advisors on these questions to people whom
you find acceptable, and I believe I have an obligation to myself
and the American people to get the advice of those members of my
Cabinet who have the primary responsibility for dealing with this. "
Now, if that is in fact the approach the President would take
with respect to a demand that you not inform a member of the
Cabinet, why can't the same position be taken with respect to the
leadership of the Congress?
I would appreciate it if you could respond to those points.
Mr. CARLUCCI. You are throwing out hypotheticals, of course. I
can't second-guess them. It may be possible that the Canadians
could have been talked into it, had this legislation been in effect.
We will never know that.
The fact was that they couldn't be talked into it at the time, -be-
cause it was our normal practice to inform the Congress.
Secondly, I am not so sure if I were President-which will never
happen, of course-and I were forced to make a choice between five
lives and cutting my Secretary of Defense or Secretary of State out
of the loop, that I wouldn't cut the Secretary of Defense or the Sec-
retary of State out of the loop.
Thirdly, let me point out that foreign governments usually have
their own reasons, too. It is not solely a question of trust of the
Congress; they may be worried about the precedent they set in
their own country-that is to say, if it is a democratic system, will
their own legislature demand similar access.
Finally, let me point out that Canada is one of our closest allies.
It has got a similar system of government. It understands us very
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well. It is right on our border. Most countries do not enjoy all of
those happy circumstances. We have to deal with any number of
non-democratic countries who don't understand the functioning of
a democratic system, who don't understand the role of the Con-
gress; and I don't know how many hours, when I was in the CIA, I
spent arguing with my foreign colleagues that, yes, you can trust
the Congress, we do have to share information with them, and
having them turn a deaf ear to that.
That may not be desirable. It may be a totally inaccurate percep-
tion, but it is, nonetheless, reality.
Mr. SOLARZ. Mr. Chairman, if I may ask one final question.
Mr. Secretary, an effort may well be made to amend the legisla-
tion before us to provide for criminal penalties for any Member of
Congress who receives information concerning special activity or
covert operations pursuant to this legislation, if it is enacted, who
then engaged in an unauthorized disclosure of that information.
Now, I know you are opposed to the legislation per se, because
you think it is unconstitutional, but could you tell us whether you
think the addition of such an amendment to the legislation, provid-
ing for criminal penalties for Members of Congress who engage in
unauthorized disclosures of information of covert activities, would
be a useful addition to the bill or not?
Mr. CARLUCCI. Well, this is, of course, a presidential issue and I
don't think I can speak for him on that point. But my own reaction
would be no, that would not satisfy the concerns I have.
Mr. SOLARZ. You would still be against the bill.
What I am saying, if there is going to be a bill, would you like to
see such a provision providing criminal penalties to Members of
Congress or not? If so, why? If not, why?
Mr. CARLUCCI. I cannot speak for the Administration on this
point. We would be glad to take it under advisement.
My personal reaction is that we ought to have stiffer penalties
throughout the Government, not just the Legislative and Executive
Branches, for people who leak classified information of any sort.
I think our espionage act is antiquated. I would like to see it
modernized and brought up to date, and I think we ought to have
much tighter penalties for leaking that security information.
Chairman FASCELL. Thank you, Mr. Chairman.
Mr. Hyde.
Mr. HYDE. I would like to ask Mary Lawton if she might step up,
if that is all right with you, Mr. Chairman. I want to get a constitu-
tional opinion from a lawyer.
Would you identify yourself?
Ms. LAWTON. Mary Lawton, Counsel for Intelligence Policy, U.S.
Department of Justice.
Mr. HYDE. Would you give us your opinion as to the 48-hour
mandatory notice?
Ms. LAWTON. I will try to summarize. What is already on the
record before Congress is largely the Intelligence Committee. But
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the Department's position, the Administration's position, is that
the 48-hour rule, by tying the President's hands too rigidly in an
area that is committed to him by the Constitution-the handling of
the foreign affairs of the nation, the collection of intelligence to
protect the national security and to react, the reason for the uni-
tary Executive being precisely that, the ability to react quickly-
steps over the line of separation of powers.
Now, we recognize separation of powers is not neat and categori-
cal, and clearly there are areas where the Congress has a role in
foreign affairs, there are areas where the President has a role in
making regulations of a legislative nature, and it can get over the
line. It is not a neat line, but there is a line. When you tie the
President's hands so rigidly that you say, "Never under any cir-
cumstances may you react, Mr. President, to a threat to this nation
without telling us first," then you have gone over the line of sepa-
ration of powers.
Mr. HYDE. Thank you.
I will yield back my time and save what little 1 have left for Sen-
ator Cohen, if that happens.
Thank you.
Chairman FASCELL. Mr. Berman.
ESTABLISH LEGAL FRAMEWORK TO ENSURE NOTIFICATION BY PRESIDENT
Mr. BERMAN. Thank you, Mr. Chairman.
Unfortunately I got called out by an appointment I had sched-
uled and I missed the thrust of your answers to Mr. Solarz' ques-
tions, but I am interested in this Canadian issue.
When I first heard about it from-I think Mr. Hyde, in fact-and
the logic of secrecy and the need for it, it seemed to be an appeal-
ing case, an appealing, very specific situation that argued against
the kind of constraint this legislation is viewed by the Administra-
tion as imposing on it.
As I think about it more and more, I really wonder just how that
washes. Of course, the Canadian rescue operation occurred before
the 1980 amendments which provided the group of eight, restricted
notice provision, an exception to the Intelligence Committee notifi-
cation requirements. I think it is important to note that. So the
specific Canadian issue dealt with a much larger group of people
than would be allowed now under the law.
Secondly, you get to this question of "for a worthwhile objective."
I mean, it gets right back into the arms sales to Iran kind of
thing-look, we have this important goal to free our hostages, but
the way to do it is to provide some arms to this country which is on
our terrorist list, the law doesn't allow it but we have a worthwhile
objective. I think in retrospect everybody thinks, both on policy
reasons and on legal grounds, that was not a justified conclusion.
If we create a constitutional set-up, it is an impossibility for me
to believe without serious effort by the Administration to persuade
the Canadians in the situation that is constantly cited, that this
group of eight-the Speaker, the Majority Leader, the Chairman
and the Ranking Minority Members of the two Intelligence Com-
mittees, the Senate Majority Leader-that group of people is some-
how less trustworthy or more likely to leak than the number of
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people who by definition will have to be involved from the Execu-
tive Branch in this particular type of operation.
You are talking about the true leadership, people who, by virtue
of their judgment and history, have been elevated to these kinds of
responsible positions. You certainly have something to say back to
the Canadians to convince them that it is an unreasonable and im-
proper and unfortunately illegal expectation that they are asking
to have visit on you, and to abandon any effort to ensure the kind
of timely notice the Stokes bill provides, based on this position,
based on this potential argument, opens up the potential for all
kinds of evasions of congressional notification, consistently seeking
third countries setting up requirements that Congress not be noti-
fied if they are going to be involved in some aspect of a particular
covert operation as a way of avoiding congressional notification.
It seems the risk, the harm, the specific situation that occurred
just two or three years ago in terms of the arms sales to Iran, all
point out that the risks are much greater from not trying to pro-
vide a legal framework to ensure notification and not simply to
rest on the President's interpretation as provided by the Justice
Department that timely notice means when the President decides
to give notice.
You talked about the President's prompt action. The President in
his own finding in connection with Iran-contra said Congress was
not to be notified. There wasn't prompt action to deal with Con-
gress. When it came out and the publicity shined on it, then there
were a variety of important corrective actions, but at the time
there was a clear intent to avoid that kind of notification.
I just don't think the Canadian example is nearly as compelling
as I did at first blush, and I don't know.if this-this is really not a
-question; it is just my reaction to the consistent use of this.
I would like to raise one other issue. You have sort of implied, in
response to Mr. Solarz' question, that there are questions of con-
gressional leaks that may very well be out there, even though you
are not using that as an issue in this discussion.
Judge Webster two days ago said unequivocally that there has
never been any evidence of any congressional leaking of disclosures
prior to the undertaking of covert operations, and the number of
times the Congress and the Select Committees have been notified
of those covert operations far exceeds the three times that they
haven't been.
Mr. HYDE. Will the gentleman yield?
Mr. BERMAN. I would be happy to.
Mr. HYDE. I don't agree with the statement at all. Is the gentle-
man saying that Judge Webster has said no leaks have occurred
from the Intelligence Committees on any matters that have been
disclosed to us?
. Mr. BERMAN. No. What Judge Webster said was that the prior
notification to the Intelligence Committees of the intent to under-
take covert operations has never resulted in unauthorized disclo-
sures of those covert operations.
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Mr. HYDE. I serve on the committee and I could name the gentle-
man several activities-and I know two that are under investiga-
tion right now, I hope, by the CIA and the FBI-of leaks from the
Intelligence Committees.
I just don't agree with that and I didn't want the witness to
think he said that.
Mr. BERMAN. Judge Webster did say it. We can go back to the
transcript.
Mr. HYDE. I don't know why he would say that. That is not the
fact.
Mr. BERMAN. It is hard for me--
Chairman FASCELL. If I could interrupt, let's allow the transcript
to settle that. It will show what the judge said. There is no point in
discussing that.'
Mr. CARLUCCI. May I comment?
Mr. Berman, I would not, of course, argue with what you said
about the Congress and the high esteem in which one would hold
the gang of four and the integrity of the institution and the seri-
ousness with which you take your responsibilities. That is really
not the issue.
You reflect on it from your perspective, with all due respect. I
have spent at least half my life living in other countries of the
world, including some fairly far out places like Zaire and Zanzibar,
and I know how they look at us. They don't look at us through the
same eyes as we look at ourselves. They don't view the Congress-
Executive Branch relationships in the same light.
When you talk about legalities in the United States, "You are
asking us to do something that is illegal", that is a concept that
doesn't register in many countries of the world.
There is a view generally that the U.S. Government is very leaky
and, quite candidly-and I don't want to get into the merits of the
issue-there is a perception out there that information given to the
Congress leaks. The issue isn't whether it is true or not; the ques-
tion is, what is the perception, what do other countries believe?
You mentioned the danger of evasion. We have had an oversight
process now for 10 or 12 years. You have got one case that you
allege there has been what you call an evasion, and I don't want to
get into the merits of the issue. I made it a point to say I am not
dealing with the past, I am dealing with the future.
By and large, the oversight process has worked. What we need is
that element of trust between the Executive and Legislative
Branches. We need to work together. We don't need more confron-
tation.
If you weigh the two instances-the Canadian rescue operation,
where lives were at stake, and the Iran-Contra operation, which
was a foreign policy blunder-and you look at the future and you
say, "Which is more likely to happen and which is more likely to
entail painful decisions, heavy responsibilities on the President?
Will he ever have to move in the future to save some lives?" I don't
think you and I are capable of making that kind of an assessment.
I don't think we can predict into the future for the sake of tying
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down presidents to make sure that you will never get a repetition
of the Iran-Contra affair.
Secondly, you are going to visit the correction for this error on
future presidents, not the current President. When we elect our
presidents, we have to put an element of trust in them; that is the
only way our system will work, and that is precisely what the Iran-
Contra report said.
Chairman FASCELL. The gentleman's time has expired.
Mr. Solomon?
[No response.]
Chairman FASCELL. Mr. DeWine.
Mr. DEWINE. I have no questions, Mr. Chairman.
Chairman FASCELL. Mr. Gilman.
Mr. GILMAN. Thank you, Mr. Chairman.
We welcome Secretary Carlucci before us.
Secretary Carlucci, during the course of our testimony, we have
heard a great deal of issues with regard to the constitutionality of
several provisions of this measure, and discussion of the bill has
centered on the absolute 48-hour congressional notification require-
ment.
I understand that we have before us--
Mr. Chairman, I understand that this question has been fully re-
sponded to. Then I will waive my question.
Chairman FASCELL. Mr. Weiss.
CONGRESS' CONSTITUTIONAL AUTHORITY
Mr. WEISS. Thank you, Mr. Chairman.
Mr. Secretary, do you agree that the CIA exists because of legis-
lative authorization?
Mr. CARLUCCI. Well, if you consider-I would defer to counsel on
this, but the 1947 National Security Act--
Mr. WEISS. Do you agree that covert activity exists because it is
authorized by the Legislature?
Mr. CARLUCCI. I defer to Mary Lawton.
I think it is inherent in the constitutional authority.
Ms. LAWTON. There is no legislation that I know of authorizing
covert action. There are appropriations setting dollar limits on ex-
penditures. There is no authorization act that I am aware of.
Mr. WEISS. Congress could, by failing to appropriate funds for it,
eliminate covert activities; is that correct?
Mr. CARLUCCI. That is correct.
Mr. WEISS. Therefore, would you agree that Congress has the
right, through the appropriation process, to limit the nature and
extent of covert activities?
Mr. CARLUCCI. It has the ability, yes.
Mr. WEISS. All right. So would you then not agree that Congress
has the power to determine that, regardless of what the time
period is, there ought to be notification to Congress before or after
a covert activity is.undertaken by the President?
Mr. CARLUCCI. Except in rare and extraordinary circumstances, I
would agree.
Mr. WEISS. Wait a minute. You agree that Congress has the
power to make the determination as to notification; is that correct?
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Mr. CARLUCCI. I don't think the Congress has the constitutional
authority to put a definite time limit on notification, no.
Mr. WEISS. Well, if we have the right to eliminate it altogether,
it seems to me we have the right to eliminate it.
Let me go a step further. Would you think that a four-week noti-
fication would be unconstitutional, four weeks after the onset of
covert activity?
Mr. CARLUCCI. I don't think the time frame is the question.
Mr. WEISS. Do you think four years would be constitutional?
Mr. CARLUCCI. I defer to counsel, but I don't think the time
frame is the issue. The issue is the President's constitutional pre-
rogatives.
Mr. WEISS. Ma'am?
Ms. LAWTON. It is the denial of the flexibility of the President to
respond, as a unitary executive, to foreign conditions. That is the
problem, not the time frame, not the numbers notified, but the
denial of flexibility.
Mr. WEISS. So whatever time limitation the Congress were to
place on it, whether it were 48 hours, 48 days, 48 months, it would
be a violation of the Constitution, in your judgment?
Ms. LAWTON. If it is that rigidly written, yes, if it permits of no
exception.
Mr. WEISS. "That rigidly"-48 months would be a violation of the
Constitution, in your judgment?
Ms. LAWTON. Yes, it probably would.
Mr. WEISS. Probably. Okay.
I know, Mr. Secretary, you have said you don't want to talk
about the past but the future, but you came in and took your posi-
tion because of that immediate past.
If we were to believe the testimony given by Colonel North and
some of the other Administration witnesses in the Iran-Contra
hearings, your predecessor, as Director of the Central Intelligence
Agency, sat before us and brazenly lied to us as to what in fact he
was charged with doing and what he had done in relation to the
Iran-Contra affair.
We have a finding that the President made a directive to the Di-
rector of Central Intelligence, that is, not to disclose a certain find-
ing to Congress. We have an Assistant to the Secretary of State
who tells us that he lied, told the committee under oath that he
lied to Congress, he didn't tell the truth because he felt that that
was the way he would have to testify.
Now, do you believe that in fact Congress ought then to just sit
still and accept the possibility of that kind of situation being re-
peated again and do nothing to try to correct the situations?
Mr. CARLUCCI. Mr. Weiss, I don t think it is appropriate for me to
comment on specific situations. But obviously if the Congress feels
it has been lied to, it has appropriate remedies. I don't think that
has anything to do with an absolute 48-hour notification require-
ment. In fact, the Iran-Contra report makes precisely that point,
that the existing laws and regulations are adequate if observed,
and the Tower Commission and the Iran-Contra report both said
these were failings of people. Fine, deal with the people, but don't
deal with the issue by restricting the authority of future presi-
dents.
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Mr. WEISS. Mr. Secretary, I remind you, and I close on this, Mr.
Chairman, we are supposed to be a nation of laws, not of people.
We have a Constitution and laws so that in effect we don't have to
rely just on the judgment, good or bad, of individuals. We provide
very clear-cut statutory or constitutional guidelines for people in
government to abide by.
When, in fact, we have a demonstration that the laws have been
insufficient to give that kind of guidance, or that the existing
guidelines were brazenly violated, it seems to me that there is an
obligation on the part of the Congress to correct or to try to correct
the situation.
We can't guarantee that there will not be another President who
will not violate even those guidelines, but at least this Congress, if
it is concerned about the safeguarding of democracy and the future
of democracy, ought to discharge its only responsibility.
Secretary CARLUCCI. I would only repeat the Congress' own
report say the existing laws were adequate if fully observed.
Mr. WEISS. Thank you, Mr. Chairman.
Chairman FASCELL. The record should show the report did recom-
mend changes in legislation as the first recommendation.
Where are we now? Mr. Leach.
Mr. Secretary, did I understand that you have to leave right
now?
Secretary CARLUCCI. I can go through one or two more questions
if you would like.
Chairman FASCELL. Mr. Leach?
We will let Mr. Leach be the last, then.
Mr. LEACH. Thank you, Mr. Secretary. I wanted to raise one or
two questions that are signature oriented. One requires a Presiden-
tial signature to be held within the Executive Branch of certain
covert operations and special operations; second, that it be trans-
ferred to the Congress.
It strikes me that there are two problems with at least the
second aspect. One is that the signed document implies more than
simply informing eight people in Congress; it implies a document
that will go into files up on Capitol Hill. That means that there is
access by more people than simply eight Members of Congress.
One of the lessons of the Iran-Contra hearings for which there
has been no comment about, and I think is a rather intriguing di-
mension, is there appears to be a leakage of papers from those files
that were developed and they were used for a political purpose.
One of the candidates for President, for example, was embar-
rassed by some of the documents that were leaked. So, I don't
think Congress has as great a record as might be implied by some
of the earlier questions in terms of leaking papers, although per-
haps the Members themselves might have a pretty good record.
I am wondering if you have any concerns at all about signed doc-
uments by the President coming up here and being placed in files.
Secretary CARLUCCI. To be quite candid with you, Mr. Leach, my
preference would be not to have it signed. On the other hand, the
NSDD we worked on with the Congress did say in paragraph (f)(2)
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that "notification to the Congress would include a copy of the find-
ing or associated memorandum of notification as signed by the
President."
This seemed to be something that was desired on the part of
those that we consulted with in the Congress. I don't think it is
anything that is of particular importance to the Executive Branch.
Mr. LEACH. If one were to offer an amendment to strike the one
provision, you would have no objection to that amendment?
Secretary CARLUCCI. I cannot speak for the administration. I
would personally argue in favor of no objection to that.
Mr. LEACH. I would only raise one other objection to that whole
idea of signing. That is, it personalizes policy in some very aggres-
sive areas and sometimes I think it is better to have policy per-
ceived to be impersonal, the Government of the United States for
which a President is accountable. But whether or not there is a
signed document, that Ronald Reagan certainly was held accounta-
ble for the Iran-contra issue.
There are some types of situations that one can envision that I
think it is just better not to have the President's signature floating
around in more places than would otherwise be the case.
So I would personally believe it might be helpful to change that,
although I do think the larger issues, the notification ones--
Secretary CARLUCCI. I think you make a good argument on the
signing issue.
Mr. LEACH. Thank you.
I have no further questions.
Chairman FASCELL. Mr. Bereuter, you have a question before the
Secretary leaves?
EXECUTIVE ORDERS
Mr. BEREUTER. Thank you. Yes, Mr. Chairman.
Mr. Secretary, thank you for your testimony. One of the difficul-
ties that has been pointed out with the NSDD approach is that di-
rectives can be altered or exceptions could be made to Directive
286, for example, in a fashion that even the Congress and others
would not know about any subsequent directive.
I have been asking members of the Executive Branch relevant
agencies how could we overcome the difficulty, the lack of trust
that has occurred. I find the procedures, for example, in NSDD 286
that have been drafted, to be acceptable arrangements. They pro-
vide adequate flexibility for the President to act under unusual cir-
cumstances.
I think, as I understand it, you are largely responsible for the
drafting of it, or a major involvement. The answer I got back from
the people in the Executive Branch is, well, there are some possi-
bilities of doing this by Executive Order. With executive orders,
you have higher visibility. The chance for subsequent action on an-
other directive could not be taken.
Still, if you simply took the language of Directive 286 and put it
in Executive Order, you preserve the prerogatives of the President
to respond to unusual circumstances.
Would you have any reaction to the possibility of trying to re-
lieve the problem that Congress has as a matter of trust at this
point by taking something like the Directive 286 and putting it in
an Executive Order? Do you think it would have advantages?
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Secretary CARLUCCI. I think the NSDD form is more appropriate
for this kind of issue, but if this is helpful in terms of getting ac-
ceptable legislation, I personally would be prepared to recommend
to the President that he put it in Executive Order.
Mr. BEREUTER. In that case, we can avoid the statutory approach.
Secretary CARLUCCI. If we can avoid the statutory approach, I
would be prepared to recommend that it go in an Executive Order,
yes, sir.
Mr. BEREUTER. Thank you, Mr. Secretary.
Thank you, Mr. Chairman.
Chairman FASCELL. Thank you very much, Mr. Secretary. We ap-
preciate your time, attention and your testimony.
Mr. Miller, he has got to go. I'm sorry you weren't here when
that announcement was made, but again, thank you very much.
Our next witness is our distinguished colleague from the esoteric
arena euphemistically called "the other body," the distinguished
Senator from the State of Maine who served on the Iran-Contra
committee and who is the primary sponsor and supporter of S.
1721, which is the companion bill to the bill which is pending
before us that came out of the Permanent Select Committee on In-
telligence, and was passed in the Senate by a bipartisan vote of 7 to
19, for which I congratulate you, Senator, and to say that we have
a difference of opinion in this committee about the validity of this
particular piece of legislation.
I don't suppose it would be any surprise to you to have some
questions that would go to the point. We are delighted you are
here. I want to thank you very much for giving us your testimony.
If you like, we can put your testimony in the record in full. You
can present extemporaneously.
STATEMENT OF HON. WILLIAM S. COHEN, A U.S. SENATOR FROM
THE STATE OF MAINE
Senator COHEN. Thank you very much, Mr. Chairman.
I see I have lost my audience with the exception of some stal-
warts over here who I have had the pleasure of serving with on the
Iran-Contra Committee. The cameras have also exited, so that
means my remarks before you will be really brief.
Chairman FASCELL. I won't take that as a personal comment. The
electronic media, radio is still here. Pencil pushers are still around.
I wouldn't be forlorn or give up all hope.
Senator COHEN. Mr. Chairman, I think I can summarize my re-
marks. My remarks have been distributed to the Members and per-
haps I can just address myself to a couple of quick points.
I believe the bill that was passed in the Senate satisfied all of the
administration's questions with the exception of one. That is the
48-hour notice requirement.
Ultimately, it comes down to two questions, I suspect, one of
power and one of policy. Does Congress have the constitutional
power to impose such a restriction or requirement upon the Presi-
dent of the United States. I think we can all cite different scholars
to support our particular positions-I know that Congressman
Hyde and others have cited Eugene Rostow-that Congress does
not have that kind of power.
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I have cited Mr. Louis Henkin, who is a University Professor of
law at Columbia University, who has indicated that Congress
indeed does have the power in the field of this type of legislation
where we are now, that there is a shared responsibility. It is not
the exclusive domain of the President of the United States, but a
shared responsibility with Congress.
So the first question is one of power. We can debate that ad infi-
nitum. I believe there is a constitutional power. I think Congress-
man Weiss just a moment ago touched upon it. We have the consti-
tutional power to prohibit covert actions, period. We can simply
not fund them through the appropriations process, and there would
be no covert actions.
The question has been raised: Is there any authority, legislative
authority, for covert activities? I might point out that is one of the
basic differences in our bills. In the S. 1721 we expressly authorize
covert actions as one part of a number of things that the President
can call upon to carry out foreign policy. I believe that S. 1721 is
probably the first place where that authority is actually expressed
in legislative language. That provision is not contained in the
House bill. But the question of power is one that we will be divided
on depending upon your viewpoint.
Number two, the question of policy is also one of great division. I
think that the notion that was just advanced a moment ago from
the Justice Department that notification to Congress inhibits the
President's flexibility, is preposterous. We are not seeking to pro-
hibit the President from taking action. There is no allegation or
suggestion that Congress has the power to prevent the President
from initiating a covert action or indeed prohibiting it from con-
tinuing once having been initiated. All the legislation calls for is
notification.
It calls for notification not to the full committees of both the
House and the Senate Intelligence Committee, but to the so-called
"gang of eight" or "big eight.'
We went further in the Senate bill and confined it to the so-
called gang of four. That was not my preference, but that was done
in order to accommodate some of the opposing viewpoints.
But I think the notion that has been advanced that notification
inhibits Presidential flexibility is not one that ought to be accepted
by the Congress.
Another point that was made by Secretary Carlucci, was that the
laws were adequate as revealed by the Iran-contra report. I don't
believe that was precisely how the Iran-contra report read, at least
the majority report. There may be a difference of the majority and
the minority report.
I think the laws were adequate if they had been interpreted ac-
cording to the legislative history. When the Intelligence Oversight
Act was adopted back in 1980, it was contemplated, I believe the
reading of the history shows, that notice would be given within a
very short time. Timely notice encompassed a time frame of a
matter of days.
I believe, Congressman Hyde, that you raised the issue about
whether or not the Director of Central Intelligence supported the
48-hour notice. When Judge Webster was up for confirmation
before the Senate Intelligence Committee, I asked him whether or
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not he would come to Congress within a matter of a couple of days
and he indicated he could foresee no circumstance in which he
would not be before the Intelligence Committee notifying us of a
covert action-even one involving life-threatening circumstances.
While he did not indicate he supported the 48-hour notice on the
legislation--
Mr. HYDE. May I just discuss that with you for a minute with
leave of the Chairman?
Chairman FASCELL. Sure.
Mr. HYDE. I think I agree that when he was before the commit-
tee for confirmation, that was his position, and Mr. Gates', as well.
Then later on, his position is different. His position now is he does
not think the 48-hour mandate is sufficient, is adequate, is enough.
To what do you attribute his change? Do you think he is being
dishonest or the administration has pressured him?
Senator COHEN. I think given the administration policy, it would
be very difficult for the Director to come before the Congress and.
support a notification requirement that was so adamantly opposed
by the administration.
I think however, it is important to emphasize what the director
said at the time: he could foresee no circumstance which would
prevent him from giving notice to Congress. He would want to
come.
Mr. Gates was more emphatic. He said he would be up here
within a matter of a few days, and if not he might be forced, as I
recall, even to terminate his service. But he felt pretty strongly
that notice ought to be given within that 48-hour period.
Mr. HYDE. Of course, in seeking confirmation one's approach to
these questions is much more conciliatory than one clinically ana-
lyzing these things.
Senator COHEN. I would not disagree with that.
Mr. HYDE. The director may have had more time since then to
think about hypotheticals. I intend to give you one later, and I
think had the director thought of that hypothetical, he might have
said things differently.
I thank you, and I thank you, Mr. Chairman.
Senator COHEN. I may have a chance to give my good friend
some hypotheticals as well. But I think the point has been made,
Mr. Chairman.
I believe that Congress has a constitutional responsibility that
we share with the President in the field of foreign policy. The
President is not the sole, exclusive architect of foreign policy. He
may be the executor of foreign policy, the implementor, but he is
not the sole architect, and we do share responsibilities in that field.
I think that this power derives from-it is through the appro-
priations clause. Congress also has the responsibility for the raising
and supporting of armies and navies. It is through the enforcement
powers given by the Constitution. So I don't think we have to be-
labor the point.
I would just like to make reference to a couple of major differ-
ences between our two bills. Number one, the language in our bill
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expressly authorizes the President to conduct covert actions and
your bill has been changed. The President may- not authorize
covert actions "unless." So there is a difference that may be one of
nuance, but I suspect there is fairly strong feeling on that matter
that the House does not feel it wants to resort expressly to covert
activities.
Those of us in the Senate came to the conclusion that covert ac-
tions are required from time to time. We do not wish to engage in
a wholesale utilization of covert activity, but recognize as a reality
that the President may. be called upon to carry out covertly a le-
gitimate foreign policy objective he could not otherwise carry out
on an overt basis. That is one difference.
Number two, your bill does not have the so-called gang-of-four
option. We limited it in those extraordinary cases to four Members,
the leadership of both the House and Senate.
Number three, your bill has. a new definition of covert actions
and ours is referred to as special activities. Frankly, I do find a
great deal of difference. I find no objection to the House's reference
and definition of covert activities with one cautionary note. There
is a reference in your definition of covert activities that would
relate to law enforcement actions that,would not otherwise be clas-
sified as a covert action requiring.a finding.
I think you ought to exercise some caution in that field, either in
the statutory language or in report language, to make sure that we
don't have a situation in which a special activity or covert action, if
it were carried out by the Central Intelligence Agency-and thus .
require a finding and notification-could be delegated in some fash-
ion to another agency to carry out that same activity or similar ac-
tivity without the requirement of a finding or notice, because the
action could than be=, classified as a law enforcement activity.
I think that is something you should look at. carefully, and I
would be happy to discuss it in a different forum with you.-
The fourth point: Your bill has a provision which does not
appear in S. 1721. It requires reports to the Intelligence Commit-
tees of expenditures of nonappropriated funds available to intelli-
gence agencies, and frankly, I think that is a good proposal.
With that, Mr. Chairman, I would yield for your questions..
[The prepared statement of Senator Cohen .follows:]
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PREPARED STATEMENT OF HON. WILLIAM S. COHEN
THANK YOU, MR. CHAIRMAN. IT IS A PLEASURE TO APPEAR
BEFORE THE COMMITTEE TO COMMENT UPON H.R. 3822, WHICH IS
PENDING BEFORE YOU. WHILE I HAVE NOT STUDIED THE BILL IN
DETAIL, IT APPEARS SIMILAR IN MOST RESPECTS TO S. 1721, WHICH
I INTRODUCED AND WHICH WAS SUBSEQUENTLY PASSED BY A 71-19
VOTE, ATTESTING TO THE BROAD BIPARTISAN SUPPORT IT RECEIVED
IN THE SENATE.
WE WERE ABLE TO RESOLVE ALL OF THE ADMINISTRATION'S
PROBLEMS WITH THE SENATE BILL SAVE ONE, THE REQUIREMENT TO
PROVIDE NOTICE OF COVERT ACTIONS NO LATER THAN 48-HOURS OF A
FINDING BEING APPROVED BY THE PRESIDENT. I THOUGHT THEREFORE
THAT I WOULD CONFINE MY REMARKS HERE TO THIS ISSUE.
THE ADMINISTRATION HAS ARGUED THAT THERE MUST BE GREATER
FLEXIBILITY FOR THE PRESIDENT -- THAT THERE WILL BE OCCASIONS
WHEN THE PRESIDENT WILL NOT WANT TO COMPLY WITH THIS
.REQUIREMENT AND TO REQUIRE HIM BY STATUTE TO DO SO WILL, ON
SUCH OCCASIONS, HAMPER HIM FROM CARRYING OUT HIS
CONSTITUTIONAL RESPONSIBILITIES AS COMMANDER-IN-CHIEF, AND AS
THE PRINCIPAL ARBITER AND EXECUTOR OF U.S. FOREIGN POLICY.
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LET'S EXAMINE THIS ARGUMENT FORA MOMENT.-NEITHER THE
SENATE NOR HOUSE BILL PREVENTS THE-PRESIDENT FROM INITIATING
A COVERT ACTION'WITHOUT ADVISING THE'CONGRESS, SO-LONG.AS.?
NOTICE AFTER-THE-FACT IS PROVIDED WITHIN ' 48. HOURS. MOREOVER,
IT MAKES CLEAR THAT CONGRESSIONAL APPROVAL'IS'NOT REQUIRED
EITHER TO.INITIATE OR CONTINUE A COVERT ACTION. SO, LET'S BE
CLEAR. THE BILL DOES NOT PROHIBIT THE PRESIDENT FROM
"ACTING." THE`QUESTION,-.THEN, IS?,HOW PROVIDING NOTICEITO
CONGRESS WITHIN 48 HOURS OF AUTHORIZING-A COVERT-ACTION WOULD,
INTERFERE WITH THE, EXECUTION OF ACTIONS WHICH HAVE ALREADY
BEEN INITIATED BY THE PRESIDENT.
THE CONCERN SEEMS TO.BE.THAT NOTICE TO THE-CONGRESS,.
EVEN THE SO-CALLED.,"GANG. OF EIGHT,"?.OR GANG OF FOUR IN THE-.-
SENATE BILL, INEVITABLY INCREASES`THE RISK THAT THE ACTIVITY
WILL BE DISCLOSED, AND THAT. WHERE LIVES ARE'AT STAKE, OR THE
SUCCESS OF THE ENTERPRISE IS CRITICAL TO THE NATION'S'
SECURITY, THE PRESIDENT CANNOT AFFORD TO TAKE THE.RISK'OF
NOTIFYING EVEN A LIMITED NUMBER OF.CONGRESSIONAL
REPRESENTATIVES. TO REQUIRE. IT BY STATUTE'THUS WOULD
INEVITABLY INTERFERE WITH THE EXECUTION OF. THE PRESIDENT'S.
CONSTITUTIONAL RESPONSIBILITIES.' . .
ON,A'PURELY?PRACTICAL"LEVEL, I REJECT THE.NOTION THAT
INCLUDING EIGHT MEMBERS OF THE CONGRESSIONAL LEADERSHIP
WITHIN THE' CIRCLE OF THOSE 'WHO HAVE TO'KNOW'THAT SUCH
ACTIVITIES HAVE BEEN INITIATED EITHER HAS OR-WILL
SIGNIFICANTLY INCREASE"THE RISK THAT SUCH ACTIVITIES' WILL BE
DISCLOSED.
1
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BUT, MORE IMPORTANTLY, I. REJECT THE.-NOTION THAT THE
CONSTITUTIONAL RESPONSIBILITIES OF THE CONGRESS CAN BE SO
EASILY OVERRIDDEN: COVERT ACTIONS FREQUENTLY RAISE SERIOUS
FOREIGN POLICY ANDDEFENSE.CONCERNS WHICH ARE EVERY BIT AS
IMPORTANT.TO'CONGRESS IN TERMS OF ITS CONSTITUTIONAL
RESPONSIBILITIES TO.ENACT LAWS OR APPROPRIATE FUNDS AS THEY
MAY BE TO THE-SATISFACTION OF EXECUTIVE BRANCH
RESPONSIBILITIES. THESE ARE NOT AREAS WHERE THE PRESIDENT
EXERCISES EXCLUSIVE. CONSTITUTIONAL POWER. THE EXECUTIVE MAY
BE THE IMPLEMENTER, BUT,IT IS THE LEGISLATIVE WHICH MUST
AUTHORIZE APPROPRIATIONS FOR SUCH ACTIVITIES UNDER THE
CONSTITUTION AND LAWS OF THE UNITED STATES. THE CONSTITUTION
EXPRESSLY' PROVIDES THAT "NO MONEY SHALL BE DRAWN FROM THE ,
TREASURY, BUT IN CONSEQUENCE OF APPROPRIATIONS MADE BYLAW."
FURTHER, IT IS MADE-CLEAR BY STATUTE-THAT FUNDS WHICH HAVE
BEEN APPROPRIATED BY LAW MAY BE EXPENDED ONLY FOR THE
PURPOSES AUTHORIZED BY CONGRESS. COVERT ACTIONS' REQUIRE
FUNDING, AND IT IS THE CONGRESS WHICH. MUST PROVIDE IT.- IT IS
THAT SIMPLE.
EQUALLY AS COMPELLING, HOWEVER, COVERT'ACTIONS
INEVITABLY INVOLVE ACTIONS ON THE PART OF THE`UNTIED STATES>
WHICH BEAR DIRECTLY UPON RESPONSIBILITIES GIVEN TO CONGRESS
BY THE CONSTITUTION. FOR EXAMPLE:
-- CONGRESS ALONE IS GIVEN THE FUNDAMENTAL
RESPONSIBILITY TO DETERMINE WHETHER THE UNITED
STATES WILL BE AT PEACE OR AT WAR WITH
PARTICULAR COUNTRIES. COVERT ACTIONS
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SOMETIMES INVOLVE THE UNITED STATES IN
SECRETLY CONDUCTING OR SUPPORTING ARMED.
HOSTILITIES AGAINST FOREIGN GOVERNMENTS,. WHICH
THEMSELVES COULD DRAW THE U.S. INTO OPEN
HOSTILITIES. SUCH ACTIONS MIGHT ALSO INVITE
RETALIATORY MEASURES BY HOSTILE FOREIGN-
GOVERNMENTS, EITHER AGAINST THE U.S. OR ITS
ALLIES, AGAIN A POSSIBILITY OF WHICH CONGRESS
OUGHT TO BE AWARE;
CONGRESS IS ALSO CHARGED BY THE CONSTITUTION
"TO RAISE AND SUPPORT ARMIES" AND "TO PROVIDE
AND MAINTAIN A NAVY." AGAIN, COVERT ACTIONS
CAN-ADVERSELY AFFECT U.S. MILITARY STRENGTH
AND READINESS.. CONGRESS NEEDS TO BE AWARE OF
SUCH POSSIBLE CONSEQUENCES;, AND
FINALLY, CONGRESS IS SOLELY INVESTED BY THE
CONSTITUTION WITH "ALL LEGISLATIVE POWERS",
INCLUDING THE'POWER TO "MAKE-ALL LAWS-WHICH
SHALL BE NECESSARY AND PROPER FOR CARRYING
INTO EXECUTION THE FOREGOING.POWERS, AND ALL
OTHERPOWERS VESTED BY THIS CONSTITUTION IN
THE GOVERNMENT OF THE UNITED STATES',"OR IN ANY
DEPARTMENT OR OFFICER THEREOF..." COVERT
ACTIONS CAN UNDERMINE LAWS WHICH HAVE '. BEEN'
PASSED BY CONGRESS. WE SAW THIS HAPPEN IN THE
IRAN_CONTRA AFFAIR. MOREOVER, THEY CAN,,,
SUGGESTTHE NEED FOR LEGISLATIVE RESTRICTIONS
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AT LEAST FOR ASPECTS OF PROPOSED OR ONGOING
OPERATIONS. CONGRESS,`IN FACT, HAS,
OCCASIONALLY IMPOSED SUCH RESTRICTIONS. BUT
WITHOUT KNOWLEDGE OF SUCH OPERATIONS, IT NEVER
CONSTITUTIONAL ARGUMENTS ASIDE, THE REALITY'IS THAT
COVERT ACTIONS CAN HAVE SERIOUS REPERCUSSIONS FOR THE UNITED
STATES. AS CLARK CLIFFORD TOLD THE COMMITTEE:'
"IN THE'LAST YEAR OR SO, WE HAVE WITNESSED THE
RECURRENCE OF AN ALL TOO FREQUENT PROBLEM: COVERT
ACTIVITIES~THAT GET OUT OF CONTROL AND EMBARRASS
THE NATION AND UNDERMINE OUR CREDIBILITY AND
CAPABILITY TO EXERCISE WORLD LEADERSHIP...
MOREOVER, THE PROBLEM IS GETTING WORSE, THE COSTS
ARE GETTING HIGHER AND THE DAMAGE IS GETTING
GREATER. FOR THIS REASON, I SAY THAT, UNLESS WE
CAN CONTROL'COVERT ACTIVITIES ONCE AND FOR ALL, WE
MAY WISH TO ABANDON THEM."
CONTROLLING COVERT ACTIONS, HOWEVER, MUST START WITH
AWARENESS. WITHOUT KNOWLEDGE ON THE PART OF THE CONGRESS,
THERE CAN BE NO CHECK AND BALANCE. INFORMATION CONCERNING
SUCH ACTIVITIES ARE ORDINARILY CONFINED TO A RELATIVELY SMALL
NUMBER OF OFFICIALS WITHIN THE EXECUTIVE BRANCH. THERE IS NO
DEBATE IN CONGRESS WITHER-ON FUNDING OR POLICY; THERE IS
DISCUSSION IN THE PRESS; NO COURT OF WORLD OPINION. PUBLIC
AWARENESS IS USUALLY NON EXISTENT. THE SOLE CHECK ON COVERT
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ACTIONS OUTSIDE THE EXECUTIVE BRANCHARE THE INTELLIGENCE-.
COMMITTEES', WHO' NECESSARILY, BECOME'. THE SURROGATES" FOR- THEIR`
CONGRESSIONAL COLLEAGUES'', AND FOR" THE, AMZRICAX=PEOPLE'. BUT
THEY CANNOT PERFORIl THIS FUNCTION WITHOUT KNOWLEDGE'AND?
AWARENESS, AND FOR' THIS' THEY ARE DEPENDENT'ULTZ-MATEL&' UPON
THE PRESIDENT.
SINCE, THE INTELLIGENCE; COMMITTEES= WERE` ESTABLISHED IN
1976, EVERY- ADMINISTRATION'; INCLUDING? THE. PRESENMONE, HAS,
AS:- A. MATTER?, Or- PR*CTZCE. RECOGNISED'' Mar CONIIZ'TTESS ' SPECIAL,
ROLE-:, PAW HAS`, COOPERATED' TO-ENSURE', THAT" THEYARE ABLE" TO'
FULFILL TT IN" FACT,. DESPITE': THE" ASSER'#YOMWB O '-' THE=JUSTICE'
DEPARTMENT THAT THERE. WILL BE: T-INES" WHEW'- THE" PRESIDEtiT' .CANNOT`
NOTIFY' C SSOF:.A: COVERS' ACTION"=WI iUT`=JEO?kRDI'ZINGG' I'T;
THERE HAS NOT' BEEN`^A' S'INGLE'? INSTANCEY ZN' THIS'ADMINISTR'ATIOWi
WHERE`' THE: ZNTZLLIGENCE.COIMIITTEES6,HAV''NOTEERiE''APPRtSED" OP`;
A COVERT ACTION;.. EXCEPT, FOR: THE': ZRRE'ARRB' SALE;,. ANDr-WE;. ARE _
ALL PAINf!VLLY`AWARE`OF"THE' RESULTS'
THERE: HAVE SEEM LIVES' AT- RIS'E' IE MANY-: O?' ,THESE'; COVERT
OPERATIONS., THEE!,, RAVE, BBEWR,S9667MMMA& EOREZGW= POLICY'
I NTERESTS' AT RISK. BUT' THIS' HAS NOT' PREVENTED.- THE'
ADMINISTRATION,: FROM .ADVISING'THE';COMMITTEES. INDEED; AT
THEIR RESPECTIVE CONFIRMATION' HEARINGS, BOTH THE CURRENT`
DIRECTOR AND DEPUTY DIRECTOR OF THE'CENTRAL INTELLIGENCE
AGENCY TOLD THE COMMITTEE'THAT'THEY COULD NOT IMAGINE WHAT
CIRCUMSTANCES WOULD PREVENT THEM FROM NOTIFYING THE
COMMITTEES OF A' COVERT ACTION'. BOB'. GATES STATED: "I WILL
RECOMMEND TO THE PRESIDENT AGAINST: WITHHOLDING PRIOR
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NOTIFICATION UNDER ANY CIRCUMSTANCES, EXCEPT THE MOST EXTREME
INVOLVING LIFE AND DEATH, AND THEN ONLY FOR A FEW DAYS,
SEVERAL DAYS.'" JUDGE -WEBSTER LATER COMMENTED- '"I HAVE
TROUBLE IMAGINING ANY SITUATION THAT IS SO SENSITIVE AND
LIFE-THREATENING THAT THE CONGRESS~CANNOT-BE ADVISED OF IT."
DESPITE THE LEGISLATIVE HISTORY OF THE OVERSIGHT STATUTE
AND DESPITE ACTUAL PRACTICE UNDER THAT STATUTE, THE
ADMINISTRATION TAKES THE POSITION THAT THE PRESIDENT-HAS
"UNFETTERED DISCRETION" IN TERMS '0-F PROVIDING 'NOTICE-OF
COVERT ACTIONS TO'CONGRESS. INFOTHER WORDS, THE-REQUIREMENT
IN 'SECTION '501(8) OF THE INTELLIGENCE 'OVERSIGHT 1ACT, "THAT THE
PRESIDENT NOTIFY'THE INTELLIGENCE' COMMITTEES "IN A TIMELY
FASHION" OF' COVERT'ACTIONS HE'HASeALREADY APPROVED-MEANS
WHATEVER THE.,PRESIDENT WANTS IT TO:MEAN. INDEED,;?IN%,NSDD
286, WHICH' PRESIDENT REAGAN ISSUED`LAST'FALL, IT'$ROVI-DES
THAT ANY?DECISION NOT TO NOTIFY-CONGRESS OF A,COV.ERT:ACTION
WILL BE REVIEWED IN THE EXECUTIVE BRANCH EVERY 1'0 "DAYS UNTIL
CONGRESS IS'NOTIFI^ED, BUT THERE IS NO-OUTSIDE LIMIT
ESTABLISHED. `PRESUMABLY, WE ARE L'OOKING AT AN INDEFINITE
PERIOD WHICH WOULD DEPEND UPON THE CIRCUMSTANCES.A'T -ISSUE.
I "DO NOT THINK CONGRESS CAN :SETTEE FOR THESE ASSERTIONS
OF ABSOLUTE DISCRETION BY THE EXECUTIVE BRANCH. IF WE ACCEPT
THE NOTION THAT "TIMELY NOTICE" MEANS WHATEVER THE PRESIDENT
THINKS IT MEANS, WE MAY AS WELL ANNOUNCE THAT THERE IS NO
CONGRESSIONAL OVERSIGHT OF COVERT ACTIONS. HOW CAN WE CLAIM
TO PERFORM THIS FUNCTION IF WE ACCEDE TO THE PROPOSITION THAT
THERE ARE THINGS WE CANNOT BE TOLD OF?
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WE HAVE-LOOKED AT A VARIETY OF"FORMULATIONS. OF POSSIBLE
NOTICE PROVISIONS. WHAT WE HAVE CONCLUDED IS THAT EITHER YOU
ESTABLISH A TIME CERTAIN -- 48 HOURS OR WHATEVER -- OR IT
ENDS UP BEING A MATTER OF EXECUTIVE DISCRETION. THERE REALLY
IS NO MIDDLE GROUND.
I APPRECIATE THAT THE PRESIDENT HAS IMPORTANT
CONSTITUTIONAL RESPONSIBILITIES. I WANT HIM LEFT FREE AND
ABLE TO PERFORM THEM. BUT OUR SYSTEM IS NOT A MONARCHY,
RATHER IT IS A SYSTEM OF CHECKS AND BALANCES. THERE IS TOO
MUCH AT STAKE FOR OUR COUNTRY WHERE-COVERT ACTIONS ARE
CONCERNED FOR CONGRESS TO BE KEPT OUT OF THE PROCESS.
THANK YOU. I'LL BE GLAD TO ANSWER ANY QUESTIONS YOU MAY
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Chairman FASCELL. Senator, I want to thank you very much for
pointing out the differences in the bills. I think very good points
were made. We will have to consider those very carefully.
I just wonder if I have gotten a full understanding, and I don't
think I have. I detect something going on here with respect to the
use of words between the Intelligence Community and legislators,
and I want to be absolutely sure that I understand that we are
talking the same language or I want to understand that we are
talking different language.
A covert activity, to me, simply means that it is secret. Am I
wrong?
DEFINING COVERT OPERATION AND SPECIAL ACTIVITIES
Senator COHEN. It is secret in the sense that it is not intended to
be made public. That is correct.
Chairman FASCELL. Now, a special activity infers to me that it
may or may not be covert.
Senator COHEN. I think in traditional intelligence parlance, spe-
cial activity has its own implications and is not designed to be
made public.
Chairman FASCELL. All right. So both the special activity and a
covert operation are both supposed to be secret in the general par-
lance of the Intelligence Community.
Senator COHEN. That is correct.
Chairman FASCELL. There is no presumption as far as you know
that would indicate otherwise.
We can carry that presumption one step further, I take it, and
that is that any activity by the Intelligence Community is covert.
Senator COHEN. No, that is not correct.
Chairman FASCELL. Intelligence operations can be open, public?
Senator COHEN. I think there can be intelligence activities which
are open and not necessarily covert.
Chairman FASCELL. They probably ought to be anyway because
everybody knows about them. People write books identifying all
the agents, certainly in the countries in which they operate, they
are well known. That is for sure. In any event, that is another
thing.
Now, does special activities, from your knowledge and experi-
ence, intend to refer to activities carried out by other agencies or
divisions or departments of government other than the Intelligence
Community; to wit, other than the CIA or somebody close thereto?
Senator COHEN. Well, you have a number of intelligence agencies
that are considered to be within the Intelligence Community.
Chairman FASCELL. Well, let's consider them all together, all
right? How about agencies that are not performing an intelligence
activity, although they may be doing that also, like DIA, for exam-
ple, and the four units that exist within the services that are also
doing intelligence plus all the others we have. But how about non-
intelligence collection dissemination, analysis activities? Does the
word "special activities" in this bill or your bill cover those non-
intelligence actions, activities, operations, whatever you want to
call them, that are not carried out by the Intelligence Community
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as defined in the. generally accepted definition that we understand
here?
Senator COHEN. The way in which our bill was crafted was to
take those activities that would ordinarily be carried out by the in-
telligence community, one agency or another. If carried out by a
non-intelligence agency, it would nonetheless be covered. Let's sup-
pose, for example, the Department of Agriculture -was mentioned
during the course of our hearings, and was assigned and tasked to
carry out what otherwise would be regarded as'' an intelligence ac-
tivity, a special activity. That would be embraced under S. 1721.
Chairman FASCELL. See, that is not what I am after. I understand
that. But I am glad to know that that activity would be covered as
an intelligence related activity. Therefore, it would be classed as a
special activity and therefore would be covered under the legisla-
tion, is that right?
Senator COHEN. That is correct.
Chairman FASCELL. Okay: Now, what I am referring to is non-
intelligence activity, a covert operation -carried out by. another de-
partment of government that is not within the intelligence-
commu-nity.
Senator COHEN. If it is a covert activity that would fall within
the definition of trying to influence the economic, military or diplo-
matic activities of a foreign country, and in which the U.S. role
was not intended to be publicly acknowledged, then it would fall
within the definition of a special activity and would ? be covered
under the bill.
Chairman FASCELL. Even though it was covert or even though it
was open?
Senator COHEN. That. is correct. If it is covert activity., If you
have an overt activity-we don't have a problem. Everyone at that
particular point knows. If you are having a covert activity carried
out by an agency that does. not normally engage in intelligence ac-
tivities, it still is covered. -So it is the activity that defines whether
or not it is covered under the legislation, not the agency itself.
Chairman FASCELL. Have you got a copy of the bill in front of
you there? Can somebody get-him a bill.
Would you take a quick look at zthe definition and educate me as
to how the definition covers- the U.S. Army?
Senator COHEN. My insert here says "covert action is any activi-
ty or activities conducted by an element of the United States Gov-
ernment to influence political, economic, or military conditions'
abroad," so the role of the United States Government is not intend-
ed to be apparent or acknowledged publicly, but does not include-
and then you go through a list of exclusions.
Activities, the primary purpose of which is to acquire intelli-
gence, traditional counterintelligence activity, traditional activities
to improve or maintain the operational security of the United
States Government programs or administrative activities. You go
through a series of exclusions. So you start off with a broad defini=
tion that means an activity conducted by an element of the United
States Government.
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I would assume under that definition, the Army, the Navy, or
anyone else that conducts that kind of activity would fall within
the parameters of the bill.
Chairman FASCELL. Okay.
What troubles me-and then I will yield, I have used too much
time here, but obviously I think it is an important issue.
The inference there is that it assumes the delegation at any time
to carry out a covert activity is proper.
Senator COHEN. I don't think so.
Chairman FASCELL. It assumes-excuse me. The presumption is
that other elements of government can carry out the activity. Oth-
erwise there would be no reason to cover them.
Senator COHEN. I think what it is designed to do is precisely
achieve what we did in the Senate bill, and that is to make sure
that you don't have an activity normally classified as a special ac-
tivity being assigned to a non-intelligence agency, and thereby
escape the oversight provisions. You have gone about it differently,
but I think the intent is quite the same.
What you have done is say a covert action embraces any activity
by any arm of the government that is designed to achieve the fol-
lowing goals except-and then you except in four cases. Activities
primarily to gather intelligence, that would not be covered.
Traditional diplomatic or military activities, that is different
than a cover operation, traditional law enforcement activities.
Here, again, I would urge some caution. I think you ought to look
at this very closely either in report language or statutory language,
to make sure that you don't have an expansion of law enforcement
activities, broadened by various agencies to thereby justify taking
actions which otherwise-if they had been taken by an intelligence
agency-would be covered.
And then number four, routine support to the overt activities,
that is excluded. So I think we have done the same thing. I have no
problem with the House language.
Chairman FASCELL. Thank you very much.
Mr. Hyde.
PEOPLE WHO ARE FOR AND AGAINST THE BILL
Mr. HYDE. Thank you, Mr. Chairman.
Well, Senator Cohen, it is a pleasure to see you here in the lower
chamber visiting the campesinos of Congress. I must say, you are
looking very well for your ascendency to Mount Olympus to which
we all aspire with some longing, and unrequited love.
Now, I know you have got John McMahon on your side, although
John McMahon told Judge Webster the reason he said that is the
CIA is going to get it in the neck anyway. That is what Judge Web-
ster said, and I am sure John McMahon said that.
I know you have got Morton Halperin on your side. I know that.
On my side, if I may aggrandize them, there is Judge Webster,
there is Secretary Frank Carlucci, former Deputy Director of the
CIA, former National Security Advisor, now Secretary of Defense.
There is Richard Helms, there is William Colby, there is Stansfield
Turner, there is Zbigniew Brzezinski, Lloyd Cutler, Henry Kissin-
ger, Brent Scowcroft, and many more.
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Are all those bipartisan Democrats, Republicans, are they dead . .
wrong and you and Mort Halperin right?
Senator COHEN. I think you omitted Robert Gates, someone who
has certainly served as long in the CIA as you and I have in Con-
gress.
Mr. HYDE. You refused to confirm him.
Senator COHEN. I think that is unfortunate. There is a man who
has been on the front lines and he favored very strongly notifying
Congress within two or three days at the most.
Mr. HYDE. Well, three days is hardly 48 hours.
Senator COHEN. If it is a question of time-I think the question
was asked over here by-Mr. Weiss-if it is three days or four days,
if you want to make it a week, I don't have a problem with the
specific time frame. But the position of the Administration is that
any time frame is unconstitutional and I think that is wrong. .
Mr. HYDE. Well, Stansfield Turner said that the notice should
not depend on the tick of the clock, but the nature of the operation.
Now, I find that to make sense. Now, you linked Stansfield Turner
with Admiral Poindexter. I guess Admirals somehow have less
credibility than normal- citizens, but I think that makes a lot more
sense than a rigid, mechanical 48 hours. That is just our differ-
ences of opinion.
Now, you referred to the President's role in foreign policy as he
may be the sole spokesman?
EXECUTIVE/LEGISLATIVE AUTHORITY IN CONDUCT OF FOREIGN POLICY
Senator COHEN. Architect.
Mr. HYDE. Then you said the sole implementer-page 57 of
March 3rd of this year. Parenthetically, he is hardly the sole
spokesperson when you have the Speaker of the House conferring
with Daniel Ortega; you have Congressmen of the Dear Comman-
dante letters. The President is hardly the sole spokesperson. Every-
body, as Secretary Shultz says, wants to get in the act.
But continuing, you seem to describe your partnership with the
President somewhat imprecisely. You referred to it as less than a
full and collegial power in the formulation of foreign policy, and
then it seems to me something more than a simple-I quote, using
your words "simple limited advisory counsel," that most Presidents
would like to maintain. So there is a never never land in between
being full and equal partners and more than, a simple advisory
counsel. You have created a new status for the Senate and it is
somewhere in between, which I think is fascinating, if not precise.
Now, you attribute your authority, your constitutional and prag-
matic authority, to do this because of the power of the purse among
four other reasons. The power of the purse, being the most persua-
sive to me. The others I think are not, and we will discuss them,
and I don't want to take all afternoon on this, although it is inter-
esting. But surely the power of the purse doesn't give you the right
to impose something that is unconstitutional.
For example, if you were to pass a law denying the Supreme
Court salary unless they passed, decided a certain case in a certain
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way, clearly that would be unconstitutional and improper. So the
fact that you have the power of the purse doesn't authorize you to
do unconstitutional things. You would surely agree to that, would
you not?
Senator COHEN. Indeed I would. In fact, if you had read all of
my--
Mr. HYDE. I did. I am ready to discuss them seriatum.
Senator COHEN. If you will look at Professor Henkin's, I think,
brilliant article, he points out there is a difference. When there is
clearly an exclusive exercise of power, power reserved for the
President, then it would be unconstitutional for Congress to try
and inhibit that action by the power of the purse.
However, where there is a so-called twilight zone of concurrent
responsibility, Congress has every power to exercise.
Mr. HYDE. Now we get to the heart of the matter, which is the
grant of the executive power by Article II to the President, the ex-
ecutive power. But then Congress gets such powers as are "herein
granted" and it is axiomatic, Hornbook, constitutional law that
those specific grants are to be strictly construed.
Now, Clark Clifford moved into another area called "modern in-
terpretation." I suppose this is in the wake of the Bork affair that
we now no longer have original intent interpretations and we are
on new thresholds, new penumbra surround these ideas.
Senator COHEN. Do you want to include Clark Clifford, along
with Mort Halperin?
Mr. HYDE. By all means. Clark Clifford taking time out from rec-
onciling presidential candidates who are ostensibly dissimilar but
called identical, yes. He is a master. But in any event, then you
talk about the power to declare war. Surely that is an anacronym.
Surely you know no more wars will be declared. I mean, Korea was
certainly not a state of peace. Vietnam, one of the great traumas of
this century, and Congress didn't declare any war.
Senator COHEN. Are you talking about power or policy, Congress-
man? Are you talking about the inherent power or policy?
Mr. HYDE. I am talking about the facts of life. I am talking about
the fact that this country can be in a state of shooting, killing, bel-
ligerency without Congress declaring war. Surely you are familiar
with the debates in the Constitutional Convention about "making"
war and "declaring" war. So, I mean that doesn't persuade me. Not
that you need to persuade me, but I am just suggesting that it is
unpersuasive.
Then you have Congress' power to raise an army and maintain a
navy. But surely the President has the right to send the Army
where he wants to send it, so insofar as you have provided it to
him, right?
Senator COHEN. Assuming that Congress continued to appropri-
ate the money necessary to carry out the action, yes.
Mr. HYDE. Sure. But if you didn't, maybe he could get some vol-
unteers-Green Mountain Boys.
Chairman FASCELL. He would just use the budget, if the gentle-
man will allow me to intercede. We have so much unobligated, un-
spent money in the pipeline, if you got the money off tomorrow,
you would be a long time seeing the end of your policy.
Mr. HYDE. I couldn't agree with you more, Mr. Chairman.
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You said this notion that "somehow the President isn't the myth-
ical, exclusive possessor of power in the field of foreign policy." I
don't know anybody that asserts that. That is a straw man. Nobody
says he is the exclusive possessor. If you read the Constitution you
know that there are shared powers. There are complementary
powers, but to say all powers are collegial, there is no warrant for
that historically or in the Constitution.
Senator COHEN. I think you are contradicting not only me but
yourself. You pointed out, when you opened up, that I had indicat-
ed, we were not collegial partners in this, we are. a more limited
power in that regard: That is why if we were collegial, we could
prevent the President from either initiating or preventing covert
actions.
Mr. HYDE. You don't disagree with Edwin Corwin or so many
other constitutional authorities that Congress and the President
are not constitutionally equal in power with respect to all aspects
of making. a-conducting policy. Congress has enumerated legisla-
tive powers, the President, the executive power. In some areas Con-
gress is clearly .supreme, in others the President.
Only Congress can: appropriate money, declare war, and enact
laws. Only the President can nominate and remove high officials,
recognize foreign governments; and conduct foreign. relations, else
why the Logan Act?
So you will agree then we are in a new, murky area, are we. not,
on this new status of Congress?
Senator COHEN. I think it is called the twilight zone of responsi-
bility, concurrent authority.
QUESTION- OF MANDATORY NOTICE TO CONGRESS .
Mr. HYDE. Now-I thank the Chair for indulging me just briefly
for a few more minutes.
You also said this, Senator. The reference to the Canadian inter-
vention or help in extracting hostages out of Iran is cited as the
premier example of why we should not have mandatory notice. The
fact is that this law of notification was not in place at the time
that took place. The law was modified and changed in 1980, which
was after the extrication of those hostages occurred. So we cannot
cite the Canadian example as evidence that notice was not given or
timely notice was not given and not explained about.
The fact is, there was no notification requirement, as there was
in 1980. This occurred prior to that time. Did you mean that?
Senator COHEN. The 1980 Act confined the notice requirement to
the intelligence committees. Prior to that time, under Hughes-Ryan
I believe, there were about eight committees that would have had
to have been notified, and I think that was the concern. Under that
framework many people involved as opposed to regime of the 1980
Act in which only "gang of eight" would have been involved.
Mr. HYDE. So you do agree that timely notice. was required and
none was given because the Canadians said we are not going to co-
operate if you tell anybody; right?
Senator COHEN. There, I would disagree. with you. That is a
matter that I think requires some exploration.
I would suggest you call Admiral Turner before we discuss it.
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Mr. HYDE. We have and he is the one that cites that.
Senator COHEN. I would say I am under a different impression in
terms of the degree of opposition. But in any event, if we are going
to accede to the notion that a third country is going to determine
whether or not they cooperate and whether or not notice is given, I
think you might as well just give up the whole notion that you
have congressional oversight on covert actions.
Mr. HYDE. Well, I couldn't disagree more. I think in a very dan-
gerous world, with terrorists, there are going to occur times-and
Lloyd Cutler said it, he said nobody is smart enough to imagine the
circumstances that can occur where the flexibility,, maneuverabil-
ity, wiggle room, elbow room, may be absolutely indispensable to
save lives.
I agree with him there. Just let me make one more point. There
is so much more, but I don't want to impose and trespass on my
colleagues here. But I think it is a measure of the gravity of the
problem that none of the bill's proponents, Senator, express any
real concern about leaks.
On the contrary. They are minimized and you have said, I think
,somewhat ingenuously, that nobody in the Intelligence Committee
has ever leaked about a covert activity.
Leaks are endemic. Leaks are all over the place.
Let's talk about the Iran/Contra Committee, which was com-
posed of congressional leaders (myself excepted).
We have three of them up here on the top row, I will say, and
one right here, a premier Member right here. May I say that so
tight was security that when Admiral Poindexter was deposed, the
chairman wouldn't let any of us attend. No Members were permit-
ted.
I wonder why? I wonder why? I know why. That was rhetorical.
The members might leak.
Let me just read you a very sanitized list of leaks from that Com-
mittee.
Senator Inouye vows to kick leakers off Iran/Contra panel for telling a reporter
former CIA Director Bill Casey masterminded contra resupply efforts.-New York
Times, March 13, 1987; congressional Member exposes DEA operation on front page
of New York Times, May 31, 1987.
Details of Secretary of State Shultz's private interview disclosed to the Wall
Street Journal days before Shultz appeared in public session-Wall Street Journal,
July 20, 1987.
Two Senators and one Congressman, all Members of the Iran/Contra Select Com-
mittee, revealed to The New York Times, on condition they not be identified, that
secret-then-secret evidence regarding all of Bill Casey's alleged efforts to master-
mind contra resupply efforts.-New York Times.
Congressional administration sources disclose details to Washington Post regard-
ing secret finding concerning assistance to contras.-Washington Post, January 14,
1987.
Sources familiar with congressional investigation tell New York Times about
McFarlane's then-secret testimony regarding alleged country No. 2 financial support
to the contras.-New York Times, January 13.
Congressional sources tell Walter Pincus of Washington Post details of then-secret
computer message Oliver North sent John Poindexter.-Washington Post, January
14.
Congressional sources reveal to Walter Pincus of Washington Post that Senate
and House Select Committees are planning to investigate possible misuse or diver-
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sion of funds in all alleged CIA-run Swiss bank accounts for the Afghanistan free-
dom fighters.-Washington Post, January 13.
Congressional sources reveal to L.A. Times Reporter Ronald Astrow details of
secret testimony of Assistant Attorney General William F. Weld.-Philadelphia In-
quirer, July 23, 1987.
Congressional investigators reveal incorrectly to Fox Butterfield of The New York
Times details of the then-secret testimony of Glenn Robinette. This disclosure oc-
curred days before Robinette's public appearance.-New York Times, June 18, 1987.
Congressional sources purport to reveal to Miami Herald Correspondent Charles
Green the classified identity of a nation from which the U.S. contemplated soliciting
contra assistance.-Miami Herald, August 21, 1987.
This is the last one.
Congressman discloses alleged real name of a CIA undercover officer during
Select Committee hearing on July 21, 1987.-Select Committee hearing transcript,
page 54, July 21, 1987.
Et cetera, et cetera, et cetera.
Now--
Senator COHEN. You left one out and that was the disclosure of
the minority report in The New York Times before it was supposed
to be released.
Mr. HYDE. All right. That, too; that, too.
I know you weren't sympathetic to the minority side, so you may
well be critical of that.
Now, I don't think our allies or friends or people from whom we
seek cooperation make that fine distinction that you made that
covert operations weren't leaked, although I could name you sever-
al covert operations that have leaked.
The problem with naming them is you confirm them and that
makes it very difficult. But I have a bookful of classified leaks,
some of which are still under investigation and, surely, Senator,
knowing the former chairman of your committee and the former
vice chairman of your committee, the difficulties they had with se-
curity, keeping secrets and knowing that our committee lost a very
valuable Member of that issue fairly recently, isn't it pushing
things a little to say that there aren't serious leaks around here?
Senator COHEN. I believe the statement I made that I am not
aware of a leak about a covert activity since I have been on the
committee is accurate as far as my service in the Senate. I can't
speak for the House.
You may have more information on it than I certainly. But I am
not aware of any covert action ever being leaked by any Member of
the Intelligence Committees.
Mr. HYDE. I am aware of no prosecutions. I am not aware the
FBI has ever asked me a damn question. I have never been asked
to take a polygraph nor has any Member of our Committee, but I
would sure like to see it happen and I would like to see your com-
mittee get polygraphed and get investigated because this place
leaks like a sieve and nobody cares and that is why nobody wants
to talk to us, because it gets in the paper and lives are at risk.
Unless we recognize the problem and stop pushing it aside or re-
defining it out of existence, nobody is going to cooperate with us.
We can pass all the laws we want and let's get it down to 48 min-
utes. Nobody is going to trust us and I will tell you, we are going to
get into a situation with biological warfare sometime and we are
going to need somebody to penetrate the office of somebody at the
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U.N. to get that secure and they are not going to cooperate with us
because they can't trust us. Then we will have it on our hands.
But this law won't protect us.
I have said enough and I really appreciate the indulgence of the
Committee. I will be quiet for a month. I owe you that much.
Senator COHEN. Mr. Chairman, if I could respond briefly.
Chairman FASCELL. You have got equal time, Senator.
Senator COHEN. If that were the- case that there was so much
leaking going on--
Chairman FASCELL. You can say for the record all of the other
leaks made on the other side because I am sure they would fill vol-
umes, too.
Mr. HYDE. If you are speaking of the administration, I concede
that.
Chairman FASCELL. No, no. I think there were some left out of
this list I recall.
Mr. HYDE. I have a bigger list; but for security reasons, these are
the most innocuous and benign.
Thank you.
EXECUTIVE BRANCH COMPLIANCE WITH NOTIFYCATION.PROCEDURES
Senator COHEN. If I Might just point out, if that were the case we
would have to raise the issue of why the Administration. for the-
past eight years notified Congress of all of these covert activities?
If they were so fearful that each one would be disclosed;. I am
sure they would have raised the issue and not abided by what I be-
lieve the law to have been.
The fact is that they have, with the possible exception of the
mining of the harbors of Nicaragua, informed our Committees of
each and every activity, and these apocalyptic results have not oc-
curred;
I respectfully suggest there has been a good working relation-
ship. They have complied with the law and what changed was
Iran/Contra.
Now, in their dissenting views to the House Intelligence Commit-
tee report Congressmen Hyde, Cheney, Livingston and others on
page 4, I believe there is an inaccuracy.
At the top of that page, it reads, "A number of persons involved
in reviewing, approving and notifying Congress of covert actions
failed to follow established procedures."
I think that is wrong. They followed the procedures directed by
the President of the United States. Those engaged in the sale of
weapons to Iran followed the procedure by the President specifical-
ly directing no notification.
So it wasn't as if they were off on their own not notifying. That
was a specific directive by the President of the United States.
The second point I would make again on page 9, "Foreign coun-
tries will refuse to cooperate." I would assume if we accept that po-
sition that third countries will not cooperate, then for all practical
purposes, any President can say in the future that I am sorry, we
are going to carry out this covert action, but X country said they
wouldn't cooperate; therefore, we had no alternative but not to
notify Members of Congress until after the action had been com-
pleted.
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TIMELY NOTIFICATION TO CONGRESS
If you accept that proposition, then you have surrendered any ef-
fective oversight action. And if that is the case, so be it. But I think
we ought not to be heard to complain at some future time. If a
future President-I know that Mr. Hyde would agree-if, for exam-
ple, President Dukakis should come to office and decide that- he
would like to covertly assist the ANC or some of the Front Line
states with military equipment and consider that activity to be so
highly sensitive that notice should not be given to Members of Con-
gress, I would assume Congressman Hyde would be one of the first
ones that would want to complain about the fact notice was not
given about a secret transfer of weapons to the ANC.
Mr. HYDE. Just for a second let me just make one comment. I
think the President has got to notify Congress of any covert activi-
ties, especially high risk. I think there is no question about that. I
think there is no question that that law, "timely fashion," was vio-
lated egregiously by this administration in the Iran Contra, and I
agree that had the President consulted with anybody on the Hill,
Bob Michel, somebody that he had confidence in, Senator Bob Dole,
yourself, anybody, it never would have happened.
I agree with all those things. But I don't agree that we can cap-
sulize a time limit and force him in every circumstance, to disclose
within 48 hours. I can imagine a Codel kidnapped in the Middle
East and I can imagine people willing to help saying you tell Con-
gress and we won't cooperate. We despise Israel. We don't want
anything to do with Congress. You want our help, you do it our
way.
What do you do if you are President? You don't stand on your
high horse and say you are not telling us how to run our country-
you say what do you want to help get these people freed, which is
what really happened in the hostage situation here.
Senator COHEN. That is also in Iran Contra, what do you want to
get these guys out and that is part of the problem.
Mr. HYDE. It is part of the problem.
Chairman FASCELL. If you had a Codel, I am afraid he would just
leave us there. You could always declare war, though, when in
doubt.
Senator COHEN. Part of the difficulty-if I might, Mr. Chair-
man-in saying timely notice was egregiously violated is how do
you know it has been violated either in an egregious or nonegre-
gious fashion. The Justice Department has interpreted Section
501(b) of the Act to say that timely notification means whatever
ti the President says it means. So if the President declares 10 months
is timely, then we are bound by that interpretation, and that is the
difficulty we have had.
Prior to the Iran Contra affair, there was a working understand-
ing that there be prior notification, but in the absence of prior noti-
fication notice within a matter of a couple of days. Now, the Jus-
tice Department has said that, no, the President has unfettered dis-
cretion to determine when and if he is going to notify the members
of the Committee and that is part of the dilemma we are trying to
resolve.
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Mr. HYDE. Senator, I reject that opinion and so does everybody
on this committee. The President doesn't have unilateral authority
to make that judgment and bind us. Everybody agrees ten months
is not timely fashion. But don't put him in a straight jacket where
human lives are at stake. That is my point.
Mr. WEISS. Yield?
Chairman FASCELL. He doesn't have the time. Let me get back in
order here because I know the Senator has to get back over there.
They are voting on nominations. I am just teasing, just teasing.
Mr. Berman?
CONGRESSIONAL RESPONSE TO EXECUTIVE NONCOMPLIANCE
Mr. BERMAN. Thank you, Mr. Chairman. Thank you, Senator
Cohen. We think you are okay even though you are in the Senate. I
just might initially point out that Secretary Carlucci emphasized
45 minutes ago that no part of his opposition to this bill has any-
thing to do with a belief or a concern that notifications to the
group of eight, the group of four, the Intelligence committees, en-
hances the likelihood of leaks which could undermine covert oper-
ations.
He made that position very, very clear. He raised the Canadian
issue. He raised the Constitutional confrontation. He specifically
waived any reliance on this notion of leaks as an argument to be
against this bill. I think since the administration is leading the op-
position to this legislation, that was a useful indication of their
premises.
I would like to- ask you several questions. Mr. Clifford came here
a couple of days ago. Let me put it a different way. Let's walk
through this legislation. Let's assume that legislation passes the
House along the lines of a bill that has passed the Senate. It is rec-
onciled in a conference committee, sent to the President, he signs
it, lets it go into law without his signature. He vetoes it, but the
veto is overridden in both Houses and it becomes law. The question
of how this becomes different than the War Powers Act in the
sense of congressional ability to put meaning into this, to deal with
the problem of a President who believes it is unconstitutional and
we have had the coal miner case and others on the question of who
has the power to decide constitutionality, but if there is no method
of enforcing it, we have a real problem here.
Clark Clifford suggests one of two things, either an automatic
cut-off of funds under our constitutional power of the purse and the
power to appropriate funds, where the timely notification provi-
sions, as provided in this legislation are ignored, or criminal sanc-
tions for those who violate the provisions of this law or engage in
covert operations in violation of this particular law.
I think a big part of his reasoning as to why these kinds of provi-
sions would be helpful in that in some almost intangible fashion
they would cause a President to think much more carefully about
failing to notify Congress, not so much that the criminal prosecu-
tion could test the constitutionality or the expenditure of a lawsuit
over the expenditure of funds would be meaningful, but that it
would create an atmosphere which would give the law the kind of
teeth that it might not otherwise have.
What do you think about those suggestions?
Senator COHEN. Well, I would prefer the self-enforcing mecha-
nism of the cut-off of funding over that of imposing criminal sanc-
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tions against employees acting under the instructions of the em-
ployer; namely, the President of the United States. I would prefer
the former to the latter. But I frankly would prefer we not do
either in order to get a bill that would be acceptable to the Senate.
I think that to the extent that that kind of provision were includ-
ed, it would make it more difficult to sustain or override a veto
which is expected on this legislation.
Mr. BERMAN. So if for no other reason, than, just simply going
through more than an academic exercise this year we should re-
strain ourselves?
Senator COHEN. I think to the extent we pass this, obviously a
future President who feels very strongly that he or she maintains
the inherent constitutional authority not to notify Congress under
any circumstance until long after a covert action is complete, that
particular President is willing to risk a constitutional confrontation
and turn it to the courts and the kind of paralysis that we saw
during the past year, I think we have to accept that as part of our
system.
I think we can raise the stakes in terms of the visibility of the
law, that our interpretation of timely notification means timely
within a certain time frame and if a President chooses to violate
that and challenge us, then we have to either await a court deci-
sion, which I doubt very much that a court would consider the
issue, preferring rather to declare it to be a political question. You
will end up with a political confrontation in which the kind of pa-
ralysis that afflicted the Reagan Administration would occur again.
But there is no way, in my judgment, in which you can possibly
insulate future Presidents against the temptation to go beyond
what we believe to be the constitutional limitations and say that I
have the power and therefore I am going to exercise it. I don't
think imposing criminal penalties would do it and I don't think
that, frankly, the cut-off of the funds would prevent him. I think
that would be the more preferable solution to the criminal, but I
think the bill as written is sufficient.
GROUP OF EIGHT VS. GROUP OF FOUR
Mr. BERMAN. Is there any rational reason why in recognizing in
unique situations the need for a smaller group, now the gang of
eight, that the Chairman and the Ranking Minority Member of the
two Intelligence committees, the committees that deal with Intelli-
gence activities that have specific information that have a context
to analyze what is being suggested, that they should not be part of
that group, in other words, that the gang of eight, group of eight,
provides the logical tight-knit group rather than the Senate group
of four?
Senator COHEN. I don't question that. In fact, I argued that on
the Floor myself and frankly, I felt that in order to strike an ac-
commodation with those Members who still were reluctant to
impose this mandatory notification in order to satisfy their con-
cerns about the possibility of leaks as articulated by Congressman
Hyde, that we would narrow the circle of those who were informed.
My own view is I would prefer to keep it eight, but if we keep it
four I would prefer it to be the House and Senate leadership of the
Intelligence committees, those who do have some context in which
to place the notification given by the administration.
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Frankly, it was necessary to get the bipartisan support on such a
broad basis that I agreed to accept the four instead of the eight.
NOTIFICATION TO INTELLIGENCE COMMITTEES
Mr. BERMAN. Turning to another issue, is it your understanding
that the Senate bill requires that when the group of eight or the
group of four is notified of a covert operation that at some point
the obligation still remains on the Executive Branch to notify the
Intelligence Committees?
Mr. COHEN. I think there is a difference here that in those rare,
special circumstances where the utmost confidence is required I
think the Administration has latitude in terms of when it notifies
the entire committee, and when it consults with the Chairman and
Vice-Chairman of the Intelligence Committees.
They still have an obligation to notify the entire committee. I
can think of examples.
Mr. BERMAN. They still have the obligation.
Mr. COHEN. They have an obligation todo so, but the time frame
in which they have that obligation would vary.
Mr. BERMAN. Oh, no, I understand that, but the notion that they
have absolved themselves of their notification obligations simply by
notifying the group of eight is contrary to what you think is good
policy and is the law?
Mr. COHEN. But it would depend upon the time frame under
which the rest of the Members would be alerted.
SEPARATING COVERT ACTIONS FROM DOMESTIC POLITICAL
CONSIDERATIONS
Mr. BERMAN. That is a variable.
What was the purpose of the provision in the Senate bill, I think
there is one in the House bill as well a finding. may not authorize
any action intended to influence United States political processes,
public opinion, policies or media, and I guess-I understand the
certain logic, these covert operations are not to provide, they are
not for domestic political purposes. But this is vague language.
What good are we getting from this language?
Mr. COHEN. You said it precisely. We don't want the CIA or
other intelligence operations to carry out covert operations to influ-
ence our domestic political situation. We don't want any agency to
engage by way of example in disinformation.
You may recall a proposal that was disclosed in the Washington
Post, came out of the NSC, to plant a false story that would there-
by be repeated by American journalists and have some impact
upon our policy. That is something that we wanted explicitly to
reject.
Mr. BERMAN. But there are some covert operations that have
concluded successfully, can have a side effect of positive political
benefits for the Administration and vice versa.
Mr. COHEN. You mean in other countries?
Mr. BERMAN. Yes, covert operations. Oh, is your point where the
covert operation is taking place or its purpose?
Mr. COHEN. I have to listen to your question again. I am not sure
which section you are referring to.
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Mr. BERMAN. I am referring to Section 503(a)5 of your bill,
and--
Chairman FASCELL. It goes to a question of intent, whether what
country it takes place in, domestic or foreign, and if it is going to
the question of intent, you know you don't have to scratch at it,
but you can certainly include it because all of them are going to
have some impact when they become public.
Mr. BERMAN. A finding may not authorize any action intended-
it just seems to me it is worded in a funny way, it gets into matters
of intent and motivation in a fashion that is going to have very
little legal benefit and maybe messed up the whole picture.
Mr. COHEN. No, what I think it is saying we don't want to have a
finding in which the President authorizes action that may be car-
ried out in a foreign country that is designed specifically to have
an influence on our own domestic political process, public opinion
policies or media and to carry that out on a ,covert basis, in other
words, to subject our own political process with money that is ap-
propriated by U.S. dollars to carry out a covert action.
Chairman FASCELL. Will the gentleman yield?
Mr. BERMAN. I certainly will.
Chairman FASCELL. How are you ever going to find that out, Sen-
ator? You don't think the President is going to put that in a find-
ing, do you?
Mr. COHEN. One would hope. Nonetheless, I think it is important
to specify.
Chairman FASCELL. No, I understand. I understand.
Mr. BERMAN. All you are saying, you want to purify the formal
finding. The notion of what the motivations are for a President en-
tering into a finding are going to be so, both easy and difficult, easy
to fathom and difficult to prove that I wonder what we are getting
from this.
Anyway, I don't want to dwell-if I might, Mr. Chairman, I
would ask one last specific question on the bill.
Mr. COHEN. Counsel just advises me we took this restriction out
of the Executive Order, so we are simply repeating what has been
the Executive Order for the last eight or 10 years.
Chairman FASCELL. Is this a National Security directive?
Mr. COHEN. Executive Order 12333.
Mr. BERMAN. The one that originally authorized the covert oper-
ations?
Mr. COHEN. Well, there has been an Executive--
Mr. BERMAN. The presidential findings.
Mr. COHEN. There is an Executive Order that has been in exist-
ence how many years now? Since 1980.
It defines special activities as activities conducted in support of
national foreign policy objectives abroad which are planned and ex-
ecuted so the role of the United States Government is not apparent
or acknowledged publicly and functions in support of such activi-
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ties, but which are not.intended to influence U.S..political process-
es, public opinion policies, or media.
48-HOUR CLOCK STARTS WHEN-FINDING IS SIGNED-
Mr. BERMAN. I see. Finally, do you think there-is a 48-hour obli-
gation under. your bill or there should be in law from the time a
finding is made-let's say there is a two-week lapse of time be-
tween the finding and the commencement of a covert operation.
Is the obligation to report a 48-hoar obligation after the finding,
or is it a 48-hour obligation after a finding when the covert oper-
ation proceeds immediately?
Mr. COHEN. We start with the proposition there can be no activi-
ty carried out without a signed finding and, therefore, once the
finding is signed, that starts the clock in which the 48 hours--
Mr. BERMAN. Mr. Chairman, our understanding is our House bill
in the form we have it now does not read that well and we might
want to look at that question.
Thank you, Mr. Chairman.
Chairman FASCELL. Mr. Hamilton.
Mr. HAMILTON. Thank you, Mr. Chairman.
In view of the time constraints, I will not ask any questions. I do
want to thank Senator Cohen for his extraordinary leadership on
this bill in the Senate and his willingness to testify. .,
Senator Cohen, we are delighted to have you here. We admire
and appreciate what you have done on this bill. I hope we can do
as well in the House.
Mr. COHEN. I hope you can as well.
Mr. HAMILTON. Thank you.
Chairman FASCELL. Mr. DeWine.
PRACTICAL APPLICATION OF THIS LAW
Mr. DEWINE. Thank you, Mr. Chairman.
Senator, I have a brief comment and I would like you to com-
ment on that. It is clear from reading your testimony and listening
to you today as well as looking at your statement in the Senate one
of your main points is that this bill does not prohibit the President
from doing anything.
In fact, you state in here, let's be clear the bill does not prohibit
the President from acting. I would like to maybe clarify that a
little bit and start off by saying I think that is wrong.
I think that on paper it does not prohibit the President from
acting, but as a practical matter in the real world, that it will pro-
hibit the President from acting. We can argue that it is good or we
can argue that it is bad, but it seems to me to sharpen the debate
we shouldn't delude ourselves and think that this, as a practical
matter, will not stop the President from acting in certain cases.
One of the things that has troubled some of us are the state-
ments that have been made by Senators and Congressmen to the
effect that, and I can think of one specific example where a Sena-
tor said he felt he had a-while being informed of a proposed
covert operation, if he disagreed with that operation, if he felt it
was wrong, that he had a moral obligation to leak it and basically
stop the operation.
You can argue whether that is good or bad, but that seems to me
if I am President of the United States that that is going to have in
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this legislation, which leaves no escape clause at all, which in
effect have a chilling, if we can use the term, a chilling effect on
future president's actions. And I know that one of the things that
you have argued or seem to be arguing is that maybe that is a good
idea, if the President would go and consult Congress, he would be
better off and I think we can all think of examples, the Iran/
Contra case is a prime example, as Mr. Hyde said if the President
were to talk to Bob Michel or talk to you or talk to just about any-
body up here it probably wouldn't have occurred.
But I just want to sharpen the debate a little bit and argue about
maybe what we should be arguing is that a good idea or is it not a
good idea, is it constitutional or is it not constitutional? It just
seems to me to say that this provision does not, will not in the
future stop actions by the President just isn't right, isn't correct.
Mr. COHEN. Let me address the issue in the real world or that of
practicality. If what you say is correct, they will have the practical
impact of prohibiting the President from acting, Ronald Reagan
has been out of the practical world for the past eight years because
he has, in fact, been notifying Congress of each and every covert
action and he has had no difficulty in acting and executing and
carrying it out without jeopardizing those operations.
Number two--
Mr. DEWINE. Excuse me, just a second, let me just say I am talk-
ing about in a rare case, I am not talking about the usual every
day case, I am talking about a case that may occur once in five
years.
Mr. COHEN. There have been a number of very rare cases, I
think, that Congressman Hamilton, and perhaps Mr. Fascell agree,
but there have been cases, for example, that are highly secretive,
highly dangerous, involving a number of lives, many more lives
than were involved in this particular case, in which the President
has notified the intelligence leadership, the Chairman and Vice-
Chairman and frankly I have expressed opposition to several of
those particular operations, which nonetheless went forward.
And so, what I am trying to emphasize is that we give him the
benefit of our advice, and he is free either to accept or reject it. I
can think of one or two cases in which the entire committee was
notified and the entire committee concluded that it was a bad idea
and they went back, rethought it and said, you are right. But,
there have been those cases in which they have come to the leader-
ship of the Senate Intelligence Committee and I have expressed op-
position, they have taken into account, said, thank you very much,
Senator Cohen, we disagree, we are going forward and they did.
I think as a practical matter, the President has had no difficulty
in carrying out covert actions. The difficulty he had in the Iran/
Contra affair was not that he feared loss of lives as was put to us,
but rather that it violated his own fundamental public policy.
Let's suppose a future President were to determine that it was in
our interest to transfer covertly SDI technology to the "moderates"
that exist in the Soviet Union. And, the President felt that that
would lead to such violent opposition if he notified even two or four
Members of Congress he couldn't afford to take the risk until long
after the technology had been transferred.
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I think I would have difficulty coming before this committee and
finding many Members who would support the President's invoca-
tion of inherent absolute authority not to notify the leadership of
the Senate or the House because lives were involved and it was a
dangerous mission.
I would say, wait a minute, this is a fundamental foreign policy
objective. You had an obligation to notify us, if not before, then
surely within a very short time frame so we could have expressed-
our concerns about a foreign policy objective that we feel very
strongly about.
RATIONALE BEHIND 48-HOUR NOTIFICATION REQUIREMENT
So, I think that in the world of practicality, the President has
had no difficulty in functioning,. and.. this, bill; this requirement, of
the notification would not have been necessary but for the. inter-
pretation coming. out of the- Justice Department which says that
timely notification. is whatever the: President says. I think that, is
what has led to the 48 hours:
If you were to say 36, 48; a. week your know-, that is not a, prob-
lem. This was designed, because- this was, the testimony of Bob,
Gates, that of Judge, Webster and' others. whofelt that was a rea-
sonable time in, which if it' is not. practical to give advanced, notice,
we can- get the notice in that time frame.
Mr. DEWINE. It is an interesting' constitutional debate and I
guess I was just-trying to frame it; and I do appreciate your com-
ments, I wanted.. to frame -it a little bit, more narrowly because- I'
think as a practical matter in rare cases it is going to change what
the Presidents do,.. it. is going to stop Presidents from taking certain-
actions, they will be inhibited: and we are not talking about the
usual case; and I guess my problem is we don't know how rare it is
going to be, or when it is going. to occur, or whether it. is going, to
be when you and I are still here, or whether we are long gone at
that point.,
That is what worries me. Thank you, very much.
Chairman FASCELL. Mr. Weiss.
Mr. WEISS. Thank you, Mr. Chairman.
I simply want to echo the sentiments by Mr. Hamilton about the
role you have played, Senator, in trying to take constructive action
to cure some of the ills of the entire Iran/Contra affair that were
disclosed, and I would like to commend you on the role you played
in the hearings themselves. Again, I welcome your clarification as
to how you arrived at the 48 hours because there was some ques-
tion as to whether in fact there was not any testimony by the
people you mentioned. I think we clarified some of that at the
hearing yesterday, but I think it is good to have it on the record`
again.
Thank you, very much. Thank you, Mr. Chairman.
Chairman FASCELL. Senator, thanks very much. We appreciate
your taking the time and your continued interest in this very im-
portant matter and we are delighted to have you come here and
join us today in consideration of this bill, especially in pointing out
the differences in the two bills and the other points you have made
which we will very seriously consider.
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I want to thank you again. The committee stands adjourned, sub-
ject to call of the Chair.
[Whereupon, at 4:15, the committee was adjourned.]
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INTELLIGENCE OVERSIGHT ACT OF 1988
HOUSE OF REPRESENTATIVES,
COMMITTEE ON FOREIGN AFFAIRS,
Washington, DC.
The committee met at 9:30 a.m., in room 2172, Rayburn House
Office Building, Hon. Dante B. Fascell (chairman) presiding.
Chairman FASCELL. The committee will come to order please.
We meet today to conclude the Committee's consideration of H.R.
3822, a bill to revise and consolidate intelligence oversight by the
Congress and to require that a limited group of eight congressional
leaders be given prior notification, or if time is of the essence, no
later than 48 hours after the covert action has been authorized, of
all covert actions.
We have received executive branch testimony over the last sever-
al days from the CIA, State Department and from the Secretary of
Defense, Frank Carlucci. We have also, received very compelling
testimony from the distinguished statesman Clark Clifford and
from our colleague in the other body, Senator Cohen who is the
principal sponsor of the Intelligence Oversight Act in the Senate.
Listening to that testimony which both opposed and supported H.R.
3822, and having reflected on the many hours of testimony before
the Select Committees to investigate the Iran-Contra affair, I would
like to make the following observations: I agree with one the prin-
cipal recommendations of the Iran-Contra report that, "While good
judgment, honestly or fidelity to the law can not be legislated, some
changes to the oversight of covert actions would make our processes
function better in the future."
The Committees therefore jointly recommended that section 501 of
the National Security Act be amended to require that the Congress
be notified in advance, but in certain cases no later than 48 hours
after, the covert action has been authorized.
That is what we are doing today. We are considering a modest
but very appropriate adjustment to the current law. We must not
disregard the lessons learned from the disastrous Iran-Contra
affair. We must not overreact either.
H.R. 3822 is a balanced approach to addressing these concerns. It
does preserve presidential flexibility while recognizing the constitu-
tional duties and prerogatives of the-Congress. H.R. 3822 is the es-
sence of good government and of true oversight and congressional-
executive consultation.
After listening and studying all the arguments pro and con on
this bill, I must conclude that H.R. 3822 should be adopted. It on
balance will serve our collective interests well. It will ensure that
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the necessary and appropriate consultation between the Congress
and the executive branch occurs at the time it is most useful-
prior to the initiation of a sensitive covert action. The bill, by limit-
ing certain sensitive notification to the group of eight congressional,
leaders will provide appropriate limited access to these most sensi-
tive secrets. It will ensure however that a balance between the
need for secrecy and congressional consultation on a covert.. action
which may have a profound. impact on U.S. foreign-..policy and na-
tional security interests will be achieved.
Finally, I would like to put in the record, without objection, a
letter/memorandum, from the Department of Justice, signed by
Thomas M. Boyd, Acting Assistant Attorney General,. giving the de-
partment's views on this bill. They are strongly opposed to, the en-
actment of the legislation because they believe it unconstitutional-
ly intrudes on the President's authority to conduct the foreign rela-
tions of the United States.
Also, I would like to introduce in the record a letter from Mr.
Don Edwards, chairman of the. Subcommittee on Civil and Consti-
tutional Rights of the Committee on the Judiciary, who ? takes the,
opposing view. Without objection, we. will put both of these letters
in the record.'
Mr. HYDE. Mr. Chairman.
Chairman FASCELL. Mr. Hyde.
Mr. HYDE. I understand this bill came to us on joint,. rather than
sequential--
Chairman FASCELL. It did, I am sorry.
Mr. HYDE [continuing]. Referral, and, therefore,. when we get to
Mr. Solomon's amendment, that ? it is on joint referral makes a dif-
ference as to its propriety. But we can get to that in due, course.
Chairman FASCELL. You are right, I was incorrect, it came to us
on joint referral, not sequential. .
Mr. HYDE. Also, Mr. Chairman, since we are putting things in
the. record, I have two items I would like to ask unanimous consent
to put in the record. One of them is a speech that I made before a
section of the American Bar Association- having to do with leaks in
congressional oversight, and the other is a.chapter from the Minor-
ity Report in the Iran-Contra investigation, chapter-13, on the need
to patch leaks, and I would like those to be a part of the record.2
Chairman FASCELL.. Without objection, they will 'be included in
the record.
Mr. HYDE. Thank you.
AMENDMENT IN THE NATURE OF A SUBSTITUTE AS MARKUP DOCUMENT
Chairman FASCELL. Anybody else have any comment? Without
objection, we will consider the amendment in the nature of a sub-
stitute to H.R. 3822, as reported by the Permanent Select Commit-
tee on Intelligence. The Chief of Staff will report the bill.
Mr. BRADY. H.R. 3822, a bill of congressional oversight. of the in-
telligence activities of the United States, . be it enacted by the
' The letters referred to appear in app. 1.
2 The information referred to appears in app. 9.
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Senate and House of Representatives of the United States of Amer-
ica and Congress assembled, short title--
Chairman FASCELL. `Without objection, further reading of the bill
will be dispensed with, printed in the record in full and open for
amendment.3
Are there amendments? Mr. Broomfield has an amendment.
Mr. BROOMFIELD. Mr. Chairman, I have a short statement.
Chairman FASCELL. Mr. Broomfield--
Mr. SOLARZ. Would you yield for a technical point?
Mr. BROOMFIELD. Yes.
Mr. SOLARZ. Does your amendment- refer to the bill or the
amendment in the nature of a substitute?
Chairman FASCELL. The amendment is not' before us yet. There
are no amendments before us yet. '
Mr. BROOMFIELD. Not yet. It will be shortly.
Chairman FASCELL. He hasn't offered it yet.
Mr. SOLARZ. When he does, will it relate--
Mr. BROOMFIELD. Mr. Chairman, I want to make sure that the
substitute you have laid before the committee, a copy of which we
received just yesterday afternoon, is the same as the bill reported
by the Intelligence Committee. Unfortunately, there are numerous
discrepancies--
Chairman FASCELL. Excuse me, this came from the, committee.
This is not a new substitute.
Mr. BROOMFIELD. The Minority didn't get the text of this substi-
tute until yesterday.
Chairman FASCELL. Everybody got it. But go ahead.
Mr. BROOMFIELD. Anyway, there are numerous discrepancies be-
tween the committee substitute and the bill reported by the Intelli-
gence Committee. I have been informed the changes appear to be
purely technical in nature. Nevertheless, I wish to point out the
Minority staff has not had time to go through the bill in detail to
assure that the meaning of various provisions has not been altered.
Mr. Chairman, is it your understanding, this is what I want to
know, that the. substitute text that you have introduced differs
from the Intelligence Committee version only in technical ways?
Chairman FASCELL. Yes. The gentleman is correct.
Mr. BROOMFIELD. Thank you.
Chairman FASCELL. And for the `purposes of the markup, we are
going to use the amendment in the nature of a substitute.
AMENDMENT OFFERED BY MR. BROOMFIELD
Mr. BROOMFIELD. Mr. Chairman, I have an amendment.
Chairman FASCELL. The chief of staff will read the amendment.
Mr. BRADY. Amendment offered by Mr. Broomfield, page 7 to the
substitute, page 7, lines 2 and' 3, strike the words "the chairman
and ranking minority members of the intelligence committee, and
delete the comma following the word "Representatives" on line 4.
Page 7, lines 6-7--
3 The markup document, amendment in the nature of substitute to H.R. 3822, appears in app.
6.
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156
Chairman FASCELL.. Without objection, further reading of the
amendment will be dispensed with, it will be printed in the record
in full, and the gentleman from Michigan is recognized in support
of his amendment.
[The amendment follows:]
AMENDMENT TO THE SUBSTITUTE FOR H.R. 3822 OFFERED BY MR. BROOMFIELD
Page 7, lines 2-3, strike the words "the chairmen and ranking minority members
of the intelligence committee," and delete the comma following the word "Repre-
sentatives" on line 4.
Page 7, lines 6-7, strike the words "in a case under. either paragraph (1) or (2), a
copy of the finding, signed by the President," and insert in lieu thereof: "In a case
under paragraph (1), a copy of the finding, as signed by the President,".
Page 8, insert the following after line 2:
"(C) The President may waive the requirements of subparagraph (B) if he deter-
mines that it is necessary to meet rare, extraordinary circumstances constituting a
serious threat to United States national security interests. In the event the Presi-
dent exercises the waiver contained in this subparagraph, he shall state the grounds
therefor in writing. Notification to Congress pursuant to this subsection shall in-
clude, for any action for which a waiver was exercised under this subparagraph, a
copy of the President's statement of grounds for exercising the waiver."
Mr. BROOMFIELD. Mr. Chairman, as I stated on our hearings on
this bill recently, I cannot support H.R. 3822 in its current form.
mainly because the bill contains an absolute requirement the Presi-
dent notify Congress of all covert activities within the 48 hours.
It is my strong feeling that this provision would place an uncon-
stitutional limit on the President's ability to execute foreign policy.
I believe it also would impede.. U.S. intelligence operations and pre-
vent full cooperation by foreign governments.
Senior administration officials, such as Defense Secretary Car-
lucci, Director of Central Intelligence, Bill Webster, and Under Sec-
retary of State Armacost, have all assured me that if my amend-
ment is adopted they would recommend the President sign the bill.
I was also informed last night the White House .agrees the Presi-
dent should sign the substitute, for H.R. 3822 if my amendment is
adopted. It is my concern for the security and effectiveness of
covert operations that lead me to offer this amendment.
My amendment, I will explain again for the benefit of committee
members and others, would do just three things. First the amend-
ment would replace the limited notifiction procedures that the
President can employ in extraordinary circumstances. Under the
bill, as in current law, the President can choose to inform only the
four leaders of Congress and the chairmen and ranking minority
members of the Intelligence Committees. I believe that the require-
ment for Presidential consultation with Congress on such matters
could be met in a more secure and satisfactory manner if the Presi-
dent only had to notify the four leaders: The Speaker and Minority
leader of the House of Representatives, and the Majority and Mi-
nority leaders of the Senate.
DEFERRAL OF 48-HOUR NOTIFICATION REQUIREMENT
Second, the amendment would allow the President to defer noti-
fication beyond 48 hours in rare, extraordinary circumstances con-
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stituting a serious threat to United States national security inter-
ests. This is a high standard that would. permit.the President some
flexibility in withholding notification for a short period of time
while a sensitive operation was underway. The administration has
already adopted-and I want to point this out, and people ought to
know it-the rare extraordinary circumstances standard in its na-
tional security decision directive on covert action.
Administration officials have also indicated that the administra-
tion would be willing to go to an even higher standard as long as it
permits the President some flexibility in special cases. Now, again,
I want to point out that the Canadian hostage rescue caper, back in
President Carter's time, was such a case. Other cases involving se-
rious risk of loss of life would also qualify. There could be other
types of cases that would require the President to exercise these
powers.
REMOVAL OF WRITTEN NOTIFICATION REQUIREMENT
And, third and finally, the amendment would remove the re-
quirement that copies of Presidential findings be sent to Congress
even if only limited notification is provided under the act. It
doesn't make sense to require written notification in such a situa-
tion, especially since numerous staff could easily gain access to
such materials. The amendment would also substitute the language
of the NSDD dealing with transmittal of a written finding. Con-
gress would always be provided a copy of the finding as signed by
the President.
ADMINISTRATION SUPPORTS BROOMFIELD AMENDMENT
In conclusion, Mr. Chairman, let me say that I believe the ad-
ministration has gone far in working with Congress to perfect this
bill. This could be a good and useful bill if it were not for the 48-
hour requirement. The administration has also worked to specify
the extremely small number of cases in which notification to Con-
gress might be deferred, and again I want to point out during our
hearings it was said that there were probably no more than three
such cases in the last 10 to 15 years, where such an operation
would come under this qualification. This amendment would clari-
fy the situation in which the President can exercise that power,
and I strongly urge the committee to go along.
We have a good bill here. A lot of work has gone into this bill.
With this amendment we can get the administration's support, we
can get bipartisan support and we can move this bill along and
assure that it will be signed by the President.
NEED TO CONSULT CONGRESS ON INTELLIGENCE OPERATIONS
Chairman FASCELL. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman.
I want to plead with my colleagues to listen, if they would, be-
cause I think what I have to say is important, and this legislation
that we are about to pass is perhaps the most important piece of
legislation having to do with our national security that we will en-
counter in many years.
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Let me preface my support for the Broomfield amendment by as-
serting that I think this administration made a grave error in judg-
ment in not notifying Congress of the Iran-Contra initiatives. I
think it was absolutely wrong. I think the penalty they have and
are sustaining for failure to notify Congress has been tremendous. I
think the political fallout has yet to be measured. I don't think
that the failure to notify Congress has at all passed with impunity,
and I hope and pray a lesson has been learned by future Chief Ex-
ecutives and future administration personnel that you cannot
engage in a risky operation, a covert operation, without consulting
with and taking into your inner circle Congress.
Because if Congress opposes and rejects what you are doing, it
cannot work, it can only serve to embarrass our country and even
jeopardize lives. So I want to start out with that premise. We are
talking about in this legislation changing the requirement that the
President notify Congress, and when I say Congress I am speaking
of the Intelligence Committees, the gang of eight or even a lesser
number, depending on the exigencies of the situation.
CALL FOR FLEXIBILITY ON 48-HOUR NOTIFICATION REQUIREMENT
The law says now "in a timely fashion." What we are trying to
do is force that timely fashion into the narrow constraints of 48
hours. Forty-eight hours. I am pleading with you not to do that, at
the same time insisting the timely fashion standard was not met
and that ten months is certainly not timely fashion, and I am will-
ing to agree to a 48-hour notice on the normal covert activities. But
I am asking for some wiggle room, some flexibility for the extraor-
dinary situation that can involve the very national security of this
country.
And let me explain. The current issue of a publication put out by
the Arms Control and Disarmament Agency, Arms Control Update,
talks about the United States and biological war. That is the real
unthinkable subject in this Congress and in this country. We
defend ourselves against intercontinental ballistic missiles and
cruise missiles and conventional warfare, but nobody wants to talk
about biological and toxin weapons, and believe me they are out
there, and they are a bigger threat than any nuclear bomb because
you can get them into this country in a diplomatic pouch, and
nobody will know about it.
Let me quote from this publication, this most recent one, as re-
gards Soviet compliance. The United States stated at the Review
Conference that Soviet compliance with this legal obligation was
subject to grave doubt. The legal obligation, my colleagues, is the
1972 Biological and Toxin Weapons Convention. Our current report
on Soviet noncompliance with arms control obligations takes note
of continued activity at suspect biological and toxin weapons facili-
ties in the Soviet Union and reports that a Soviet biological war-
fare program may now include investigation of new classes of BW
agents.
It is clear that the Soviet Union has maintained an offensive bio-
logical warfare program and capability in violation of its legal obli-
gation under the 1972 convention.
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Now, we know that chemical warfare is being waged in the Iraq-
Iran war by Iraqis. We know that other countries have developed
the facilities for manufacturing some very serious and poisonous
chemical weapons, and I am telling you in the real world you have
to contemplate that.
HYPOTHETICAL NATIONAL SECURITY EXIGENCY
Now, I pose a hypothetical to you, and I hope it always stays a
hypothetical. An observer to the United Nations who does not have
the status as a legal entity or country but is given observer status
finds that his group is in desperate straits so he gets biological war-
fare culture, gets it in the country and has possession of this. What
is going to happen if certain demands are not met? New York is
going to feel this biological weapon and 6 million to 8 million
people can be wiped out. It can happen. Believe me, it can happen.
Now, through intelligence, we find. out about this, we know who
has it, and we have an idea where it is. It is a desperate situation.
Another Middle Eastern country has access to this person and
has access to the inner sanctum of his chambers, and they offer to
go get this stuff and to take this man out if necessary to prevent
this disaster. But they tell us, don't you tell anybody because our
people's lives are at stake, our country is at stake, lives are at
stake, and we don't trust your Congress, we don't trust your CIA,
we don't trust your White House, we have seen enough of Bob
Woodward, we have seen enough every day in the papers quoting
a congressional source," an .informed source," a "White House
source" acknowledge this or acknowledge that.
Now this happens. It happens regularly. It isn't only that some-
body leaks or doesn't leak, it is the perception that other countries
have that we can't keep a secret. And if this cooperating country's
lives are going to be at stake,. don't you tell anybody.
Now, they can go in and maybe get this and save 6 million lives,
and if news of it leaks, a panic such as you can't imagine will occur
in New York. Biological warfare. It will be like a horror movie
with a cast of millions.
Now, what is the President going to do? What is the President
going to do if he has to tell Congress under the law? I am suggest-
ing to you where hostages are taken, where terrorism exists and
where life can be forfeited and our national security jeopardized,
you have to give some flexibility to the next President.
Now, you are not bashing Reagan when you pass this. He will be
leaving office in a few months, and I dare say he will never have
occasion to report in 48 hours. And if he does, he will. Because he
has obliged himself to do so under a National Security Decision Di-
rective. But I am telling you it isn't worth it to bash and to punish
an administration retroactively for some mistake they made, seri-
ous, egregious mistake they made, by tying a future President's
hands in a situation that could really happen.
CONSULTATION WITHIN EXECUTIVE BRANCH
Mr. WEISS. Would the gentleman yield for a question or two?
To whom is this question, this hypothetical, going to be given by
the Middle Eastern person?
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Mr. HYDE. Vernon Walters goes to the President, then says, "Mr.
President, we have this horrible situation."
Mr. WEISS. Thank you, and whom will the United Nations repre-
sentative speak to, the President himself?
Mr. HYDE. Who will what?
Mr. WEISS. Who will he speak to, the President?
Mr. HYDE. I would say, yes.
Mr. WEISS. How many other people will the President call in for
discussion?
Mr. HYDE. Probably the National Security Advisor, maybe the
Secretary of State, maybe not, depending on what the instructions
are from the third country that is going to risk its national surviv-
al by cooperating with us.
Mr. WEISS. So that at the very least, you will have a couple other
people besides the President involved?.
Mr. HYDE. Sure.
Mr. WEISS. In the executive branch.
Mr. HYDE. I ask unanimous consent I have three additional min-
utes.
Mr. WEISS. Thanks for yielding.
Chairman FASCELL. Without objection, the gentleman is recog-
nized for three additional minutes.
FURTHER DETAILS ON HYPOTHETICAL
Mr. SOLARZ. Thank you for yielding. This is one of the most in-
teresting hypotheticals I have heard in 14 years on the committee.
It wasn't clear exactly what action the President was being asked
to take by this Middle East--
Mr. HYDE. Supply intelligence, wire-tapping, electronic surveil-
lance to find out the movements. I don't have to discuss that with
you. Your imagination ought to be fertile enough to know what as-
sistance we can give to what is going on in the U.N.
Mr. SOLARZ. I thought you said the country that alerted us to the
danger had the capacity to spirit the perpetrator out of the coun-
try?
Mr. HYDE. Maybe not that, Mr. Solarz. Maybe get rid of him, I
don't know. But if he has got biological culture that can kill six
million people, something must be done. I could give you an exact
example of this with another country and another situation that
we leaked. It happens. And I am saying you can't tie the President
down that tightly where our national security is involved.
48-HOUR REQUIREMENT TOO RESTRICTIVE
Now, let me just give you one quote from Lloyd Cutler, a pretty
smart man who is hardly an adjunct of the Reagan Administration,
but Lloyd Cutler told us it does seem to him 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 consti-
tutionally inherent right to do something which Congress can't
interfere with. It seems to go a bit too far. You are forcing a consti-
tutional confrontation which we should avoid at all cost."
Now, Judge Webster is opposed to the 48 hours, he wants some
wiggle room. He will buy this Broomfield amendment. Secretary
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Carlucci is against it, William Colby, Stansfield Turner, Zbigniew
Brzezinski, Lloyd Cutler, Henry Kissinger, Brent Scowcroft, these
are people whose careers have revolved around questions like this.
They are not acting as Democrats or Republicans, they are experi-
enced Americans, and I plead with you to adopt the Broomfield
amendment, which gives that little room for the extraordinary sit-
uation that can occur that will involve your country, my country
and possibly the West.
So that is what I am pleading with you to think about. I just
think this legislation is an over-reaction to something that was
wrong and has not gone unpunished.
CANADIAN HOSTAGE SITUATION
Mr. LAGOMARSINO. The gentleman made a compelling case with
his hypothetical, but what about the actual case that happened?
Most of us are familiar with this. For the record, will you discuss
the Canadian hostage situation. This actually happened.
Mr. HYDE. We have six people escape from our Embassy and find
themselves in the Canadian Embassy in Tehran in 1980, and the
Canadians said "We will help you get them out of the country",
while 52 of their colleagues were held by the Revolutionary Guards
for 444 days.
But the Canadians said, "Don't you tell anybody, don't you tell
Congress", and we infiltrated CIA- agents with false passports,
German passports, and they got the six out of the country, and
then after they had left, Congress was told by Admiral Turner and
President Carter, and everybody applauded. It was a very success-
ful operation that would have been impossible if this law had been
in effect. It involved at least six lives.
Mr. BERMAN. Will the gentleman yield?
It is fair to point out this whole episode occurred prior to the
1980 amendments, prior to the creation of a group of eight.
Mr. HYDE. But Mr. Berman, the Hughes-Ryan law was in effect,
and that required timely notice of Congress.
Mr. BERMAN. Of Congress. But the alternatives with the group of
eight under rare and extraordinary circumstances were not in
place at that time.
Mr. HYDE. Admiral Turner said we were told not to tell anybody
because Canada's Embassy and Canadians' lives were at stake. And
so we have followed their instructions, and it succeeded and saved
six lives, and thank God it did. Now three months was no big deal,
and everybody said all right. What Turner says, Admiral Turner
says, you measure not by the tick of the clock, but by the nature of
the operation. That is his standard for notifying Congress. I would
go further than that. I would think the Broomfield amendment
confines itself to extraordinary circumstances where our national
security-it doesn't even say lives. I would want his amendment to
say lives are at stake. It says national security interests. We are
talking about the future, not the past.
Parenthetically, one of those phony passports was a German
passport, the initial was H. in the middle, and they stopped our
agent at the airport because German passports never use middle
initials, and they said, "Why is the "H" there?" It is one of our
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agents. He thought faster than anybody in recorded history, he
said, "I am ashamed, I was born in 1935, my middle name is Hitler,
and I don't want them to spell that out on the passport", and the
guy bought it.
You don't want to stifle that kind of creativity, do you?
HOSTAGE SITUATION NOT NECESSARILY NATIONAL SECURITY ISSUE
Mr. SMITH of Florida. Certainly the gentleman is presenting a
number of rather Plato-like theses because he is arguing only those
sides he wishes to argue.
My question is even assuming, arguing everything you say has
significant merit, does that warrant the United States changing
the way it is to do business internally? Does another country theo-
retically have the right to create a situation where we suspend
what we would otherwise honor as a tradition in this country of
information, even at that level being shared with the leaders of the
Branches, is that-some country is to make a policy different from
the norm in this country?
I might add the gentleman has set up a scenario that doesn't ex-
actly fit the national security waiver in this bill because, quite hon-
estly, the hostage situation may not be a national security situa-
tion.
Mr. HYDE. I agree with you. If you want to talk about hostages, I
think the Broomfield amendment would have to be stretched to its
broadest implication to include the saving of human lives, and that
is why I think it needs to be improved. But I am willing to accept it
because the administration will accept it, and they will sign this
bill.
I am suggesting you play it as it lays, you take the problem as it
comes to you and you make a judgment. And if our national securi-
ty interests are involved, you had better think about it.
CANADIAN REACTION TO UNITED STATES LEAKS OF CLASSIFIED
INFORMATION
Mr. BEREUTER. Will the gentleman yield?
I thank the gentleman for yielding. We have heard the argument
about the Canadians trying to dictate what our national policy
should be. What it seems to me the Canadians were doing was re-
acting to a reality, pointing out a reality to us. That reality is that
we have intentional leaking and accidental leaking through care-
less use of classified information going on in this government-in
the executive and legislative branches.
What we are attempting to do is to find a way to limit the kind
of consultation that goes on here as one means of dealing with the
problem which the Canadians obviously recognize. I think what
needs to be put on the record at this point is that the argument
about someone dictating to us what is proper for us to do in our
own governmental system is not really a relevant argument.
I thank the gentleman for yielding.
Chairman FASCELL. The gentleman's time has expired.
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FINITE SITUATION VS. ONGOING ACTIVITY
Mr. KOSTMAYER. I ask unanimous consent the gentleman from Il-
linois have three additional minutes.
If I could ask the gentleman from Illinois a question. The scenar-
io which you outlined is a finite situation, it has a beginning and
end. Once this individual is spirited out of the country and once
this material is neutralized or obtained, the incident comes to an
end.
Mr. HYDE. Right.
Mr. KOSTMAYER. What if the incident were not a finite incident,
what if it were an ongoing activity in which our security intelli-
gence, or the intelligence needed to be provided to this hopeful
Middle Eastern country for a period of two to three years. At what
point then would the President be required to finally notify the
Congress?
Mr. HYDE. I don't think you can quantify it. I think the Presi-
dent could follow the strictures of the Broomfield amendment, talk
about the existence of something and every ten days look at the
finding that is in the safe to make sure it doesn't get lost in the
shuffle. But if it takes three years to get in there and get that cul-
ture, and you got somebody willing to risk his, her or their lives to
do it and they set out those terms, I would, if I were the President,
I would adhere to those terms.
POTENTIAL FOR ABUSE BALANCED AGAINST UNAUTHORIZED DISCLOSURE
Mr. KOSTMAYER. But doesn't this really allow the President to
provide an excuse to simply never inform the Congress by allowing
him to characterize this in the way in which the Broomfield
amendment does characterize it, as an extraordinary and rare cir-
cumstance?
Mr. HYDE. Yes. As Secretary Shultz said, trust is the coin of the
realm. It can be abused. It certainly can.
Mr. KOSTMAYER. And as the gentleman pointed out, it has been
and--
Mr. HYDE. Mr. Kostmayer, balance against that the notion that
some Members of Congress have that if they don't agree with the
policy they have a duty to disclose it. Now that is on the record.
Some prominent Senators have said that, and a prominent Member
of this House once said it and did it, and you have to balance the
possibility of abuse by a President, but also the subsequent political
fallout that he will get, as President Reagan is getting now, against
the destruction of the operation and the horrible consequences.
BROOMFIELD AMENDMENT GUTS 48-HOUR RULE
Mr. KOSTMAYER. If I could continue. I think it is possible to make
a case for rare and extraordinary circumstances here and to create
an exception to the 48-hour rule. But I don't think the Broomfield
amendment does that. I think that the Broomfield amendment es-
sentially guts the 48-hour rule and despite the fact the gentleman
from Illinois has made, as he always does, a compelling and elo-
quent case, I think this essentially is a gutting amendment and
fails to create an exception for which I think a valid case could
under certain circumstances be made.
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I appreciate the gentleman yielding to me.
Mr. HYDE. Just let me say "to meet rare extraordinary circum-
stances constituting a serious threat to the United States' national
security interests," I think that is pretty tight language.
Mr. KOSTMAYER. If the Broomfield amendment is adopted under
this administration, the law and the conduct of the administration
would not change. This administration would not regard the adop-
tion of this amendment as any change in current law, and their at-
titude and their behavior and their conduct would remain precisely
the same as it has always been.
That is why they are for it, that is why they support it, that is
why they want it. It opens up a loophole you can drive a Mack
truck through.
Mr. HYDE. One sentence, this administration will pay the politi-
cal price for that error in judgment. That is why we have elections.
Thank you for giving me all this time.
BILL REDRESSES DEFICIENCIES IN PRESENT LAW
Chairman FASCELL. Mr. Hamilton.
Mr. HAMILTON. Thank you very much, Mr. Chairman.
Of course, I oppose the amendment. I want to say at the outset
that I am impressed with the sincerity and the concern that our
friends on the opposite side have displayed in their opposition to
this bill. I think I understand that and appreciate it, although I do
not agree with it.
But I recognize they argue from a point of some conviction, even
passion, with respect to this problem. I hope they will acknowledge
that from our side, we present this as a modest proposal to clarify
what we think are ambiguities in the Intelligence Oversight Act
and to encourage the administration, or to require the administra-
tion, to present a finding and to give notice whenever you engage
in covert actions. We do not seek to punish the President of the
United States. We simply believe there is a major deficiency in
present law which was revealed in the Iran-Contra hearings and
that this bill is a modest attempt to correct it.
OBJECTIONS NOT BASED ON CONCERN OVER LEAKS
Now, what are the arguments that are made against the bill?
The first one is the problem of leaks or disclosures. It is interesting
to me to note that the Executive Branch witnesses did not make
that argument. Secretary Carlucci specifically said that he was not
making a plea for this bill on the basis that the Congress might
leak. Director Webster spelled out his objections to this bill, they
did not include the possibility that the Congress would leak. Under
Secretary Armacost spelled out his objections to the bill, they did
not include, so far as I could remember, that the Congress of the
United States would leak.
Mr. LEACH. Would the gentleman yield on that point, because it
is a profound point.
Mr. HAMILTON. I yield.
Mr. LEACH. The testimony was that the Congress was in responsi-
bility equal to the executive branch, neither worse nor better.
Leaks do occur in this society.
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165
Secondly, the evidence is that in terms of verbal expressions
there might be less trouble, but we are talking about a paper flow
of which far more than simply a few Members of Congress would
be advised.
Mr. HAMILTON. May I suggest to the gentleman, if he looks at
the stated objections by the administration to the bill, I think, he
will find they did not include there the problem of leaks.
Now, I want to say with respect to the problem of leaks that I
don't dismiss it casually. We in the Congress have an important re-
sponsibility not to disclose information. It is, it seems to me, an ex-
traordinary thing to say that we in this institution are not going to
trust our most respected leaders.
When you have the gang of eight and the gang of four, you are
not talking about 535 Members of the United States Congress. You
are talking about the people we put in charge of the Intelligence
Committees to handle the most trusted secrets of government, and
you are talking about the senior Members of the Congress, our
most distinguished Members who have been elected by their peers.
And when you are saying these people are going to leak, it is an
extraordinary statement of untrustworthiness in the leadership of
the Congress.
If the bill provided that..welare going to notify the Congress of
the United States or;.=the- President must notify the Congress, I
would agree with the statements that have been made. That would
be far too many people, but the bill doesn't provide that. That is
the first question on leaks.
BILL DOES NOT LIMIT PRESIDENT'S FLEXIBILITY
Now, I think the. more serious second objection relates to the
flexibility on the President, and our friends who oppose this bill
are genuinely concerned about restrictions on the flexibility of the
President. But I ask my colleagues this question: Where is the re-
striction on the President's flexibility? This bill does not limit what
covert actions the President may take. It does not tell him how a
covert action must be taken. It does not tell him the timing of the
covert action.
The only thing that it does is to say that if he takes the covert
action, and he may do it on his own initiative without the approval
of the Congress, and we are not objecting to it, we are simply
saying if he does it, then he must give notice to the Congress. And
I do not see, frankly, that notice as requiring anything more than a
reasonable and restrained approach to the abuse of the covert
action process that we are all familiar with.
And I must say I have a difficult time understanding the argu-
ment that you are restraining the flexibility of the President. We
are not doing that at all. We are merely saying when he acts, if he
acts, how he acts, then he has got to tell us that he has done so.
CONGRESS CAN PROVIDE INDEPENDENT ADVICE ON COVERT ACTION
Now, what it all comes down to for me is a question of balance.
On the one hand, you have to weigh the risks that our friends have
stated, the risk of disclosure, the risk of restraint on flexibility to
the degree that we think there is such a restraint exists on the one
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hand. You have to weigh that risk against the value and the bene-
fit of giving the President independent advice about the covert
action.
What happens in the bureaucracy, it seems to me, in covert ac-
tions-and I am not critical of this-is that a bureaucracy tilts in
favor of what the President wants to do. Not all of the good politi-
cians in this town are in Congress. They are in the executive
branch. They understand what direction the President is going to
go, and they, therefore, marshal their arguments in support of
that. There is nothing wrong about that. The President is the
leader, the elected leader, and the bureaucracy ought to support
him.
But what is lacking in that process so often is a voice that will
come up to the President of the United States and say, "Mr. Presi-
dent, what you are trying to to is plain wrong, it is not going to
work, and we think you need to reassess it." It can be raised much
more effectively by Members of the Congress who have an inde-
pendent political base, who are not beholding to the President of
the United States, and who can give him an independent assess-
ment of covert actions.
So in this balance, the value of that independent advice on these
terribly important covert actions outweighs whatever risk you may
have with respect to leaks or with respect to a restriction on disclo-
sure. That is why I support the bill.
WITHHOLDING OF INFORMATION UNDERMINES LEGISLATIVE-EXECUTIVE
EQUALITY
The final point I make simply relates to the constitutionality ar-
gument. The executive branch position with respect to the Consti-
tution, is-if I understand it correctly-that a President of the
United States has the power to withhold information from the Con-
gress under extraordinary circumstances, and those extraordinary
circumstances are not spelled out in any great detail.
Now, I want Members of Congress to think about that. If you
grant the power to the President to withhold information from the
Congress, then it seems to me that the whole oversight process is
irreparably damaged and that you cannot argue at that point that
you have co-equal branches of government.
We all know that information in this town is power, and if one
side has the information and the other side doesn't have the infor-
mation, the side that has got the information has the power.
I don't think Members of Congress accept the argument that is
made with respect to the Constitution. This is one of these great
constitutional questions that has not been litigated so far as I
know. Maybe it is better that it never be litigated, because of the
implications it has for the constitutional system.
But in this context it seems to me it is important for Members of
Congress to acknowledge that if we are going to be a co-equal
branch of government, if we are going to have full oversight re-
sponsibility, if we are going to be able to give independent advice
on these terribly important questions of covert actions, then we
have to have the same kind of information that the President of
the United States has and we cannot accept a position by the Presi-
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dent that "I can hold the information, I can hold it as long as I
want to and not advise you of what that information is."
Chairman FASCELL. Mr. Lagomarsino?
Mr. LAGOMARSINO. Thank you, Mr. Chairman.
Mr. HYDE. Will the gentleman yield?
Mr. LAGOMARSINO. Yes.
GENERAL GRANT OF POWER OF EXECUTIVE VS. SPECIFIC GRANTS TO
CONGRESS
Mr. HYDE. I would like to say to Mr. Hamilton, we are not giving
the President the right to withhold the information. That is implic-
it in the Executive power which the Constitution grants him, and
that is a general grant of the power of the Executive. The powers
that Congress receives in the Constitution are to be strictly con-
strued because they are specific grants, and the Constitution says
in support of this specificity, those powers "herein granted". So
that is my response to you.
TRUSTWORTHINESS OF MEMBERS OF CONGRESS
Secondly, you talk about how trustworthy Congress is. I think in
general congressman are trustworthy, as are most human beings.
However, the former Chairman of the Senate Intelligence Commit-
tee was recently criticized in some way or other by the Senate
Ethics Committee for revealing something to a fundraising group
in Florida that he shouldn't have. The former Vice Chairman of
the Senate Intelligence Committee voluntarily left because he dis-
closed something that they had voted not to disclose. We have had
a Member of the House Intelligence Committee leave because of
certain disclosures. So I am just not all that sanguine about secrets
not getting out.
But I would remind Mr. Hamilton, as co-Chairman of the Iran-
Contra Investigation Commission, ?that you and Senator Inouye cer-
tainly took precautions that Admiral Poindexter's testimony, vis-a-
vis "the smoking gun," didn't get out because you didn't permit
any Members to attend his deposition just the attorneys and staff,
no members-because you didn't want that to leak out and of
course blow the whole purpose of the investigation.
LIST OF LEAKS FROM IRAN-CONTRA COMMITTEE
Let me supply you with a redacted, sanitized, benign list of seri-
ous leaks out of that committee, which the cream of Congress,
myself excepted, participated in.
"Inouye vowed to kick leakers off of the Iran-Contra panel for
telling a reporter that former CIA Director Casey masterminded
contra supply efforts;" Washington Times, March 26, 1987. "Details
of Secretary of State George Shultz's private interview disclosed to
Wall Street Journal days before Shultz appeared in public session;"
the source: Wall Street Journal. "Two Senators and one Congress-
man, all members of the Iran-Contra Select Committee, revealed to
the New York Times, on condition they not be identified, then-
secret evidence regarding all Bill Casey's alleged efforts to master-
mind the resupply efforts." March 25, 1987, New York Times.
"Congressional and Administration sources disclosed details to the
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Washington Post regarding secret findings concerning assistance to
contras," The Washington Post, January 14, 1987. "Sources famil-
iar with congressional investigation tell New York Times about
McFarlane's then secret testimony regarding alleged country
number two, financial support to the contras," New York Times,
January 13, 1987. "Congressional sources tell Walter Pincus of the
Washington Post details of a then-secret computer message Oliver
North sent John Poindexter," source, Washington Post, Janu-
ary 14, 1987. "Congressional sources revealed to Walter Pincus of
the Washington Post that Senate and House Select Committees are
planning to investigate possible misuse or diversion of funds in an
alleged CIA--"
Mr. KOSTMAYER. Would the gentleman yield?
Chairman FASCELL. Let him finish.
Mr. HYDE. I have five more.
"Congressional sources reveal to L.A. Times reporter Ronald
Astrow the details of secret testimony of Assistant Attorney Gener-
al William F. Weld," source, Philadelphia Inquirer, January 23,
1987-I have pages of this.
Mr. KOSTMAYER. Will the gentleman yield to me for one second?
Chairman FASCELL. Gentlemen, I have been very lenient. We will
abide by the five-minute rule for recognition. The time belongs to
Mr. Lagomarsino and his time is up.
Mr. Kostmayer.
The gentleman is recognized for five minutes.
DEFINING NATIONAL SECURITY SIGNIFICANCE OF LEAKS
Mr. KOSTMAYER. I think I can say in 30 seconds that the gentle-
man from Illinois has not provided one single, solitary example of a
case in which a Member of the House or Senate leaked information
which jeopardized our national security.
He has provided example after example of information which
was leaked which jeopardizes the political security of this adminis-
tration. And that is the distinction.
What they don't want is for the political security of this or any
other administration to be jeopardized. What this would do is to
protect the administration or any administration from having that
occur.
These are not examples--
Mr. HYDE. Would my friend yield to me?
Mr. KOSTMAYER. Just a second.
These are not examples of national security leaks. These are ex-
amples of political leaks, and none of these members of either the
Intelligence Committee in the House or Senate has been accused,
to my knowledge, of jeopardizing the security of this country. They
have, rather, been accused, perhaps justly, of jeopardizing the polit-
ical security of this particular Administration.
I yield to the gentleman from Illinois.
Mr. HYDE. Thank you.
I have a book of leaks, classified leaks. The difficulty is in eluci-
dating them here in open session, you confirm the accuracy of
these operations. So I am at a considerable disadvantage. Mr. Tom
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Smeeton of the House Permanent Committee on Intelligence keeps
for me a thick book of leaks.
Chairman FASCELL. The time belongs to you, Mr. Kostmayer.
Mr. KOSTMAYER. I want to just insist again that the gentleman
from Illinois can interpret these leaks any way he wants. No
Member of Congress stands accused of jeopardizing the national se-
curity of the United States.
Mr. LEACH. Will the gentleman yield?
Mr. KOSTMAYER. I will not.
These are political facts, political leaks, not national security
leaks.
Now I yield to the gentleman from Iowa.
Mr. LEACH. Thank you.
I think the gentleman from Pennsylvania absolutely defined the
point that the gentleman from Illinois made earlier. He said in his
judgment we have political leaks. But we have a system in this
country that defines classifications. We have a congressional
system that honors the classification system and, when a Member
of Congress in their own judgment says this is political, that
member is saying he can do what he wants despite the law of the
United States of America that applies to Members of Congress as
well as to the Executive Branch.
The point the gentleman from Illinois made earlier is absolutely
profound in that, regard:
Now, secondly, let me say that the one series of leaks that I
think every Democrat in this committee ought to be very con-
cerned about is that the paper trail that was leaked was presum-
ably to the benefit of one of the presidential candidates on the Re-
publican side, and all I can say is this bill in its current form in-
cludes the requirement that signed documents by a President of
the United States go to the Senate among other places, a place
where a lot of people are running for President of the United
States.
We already have a record by which, for the benefit of candidates,
certain papers were leaked. That is one of the lessons of the Iran-
Contra affair. When you have Mr. Dukakis in the presidency and
you have a record- by which it appears that conservatives leaked as
well as liberals, I think you should be very alarmed.
But the most important point is the point you made that people
making their own judgment on what is a political leak of classified
information is something that is disallowed under the law of the
United States. It is something for which there have been numerous
examples, some of which the gentlemen have cited that have oc-
curred, and it isn't good enough to say that this Congress has been
pristinely pure in that issue.
Chairman FASCELL. Mr. Burton, you are recognized for five min-
utes.
Mr. BURTON. I will just take a moment, Mr. Chairman.
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I share the sentiments of my colleague, Mr. Leach, from Iowa,
and I think he makes a very salient point.
I would like to point out, before the Iran-Contra hearings took
place this committee held a secret, closed-door series of meetings
with Mr. McFarlane, Mr. Poindexter-although he took the 5th
Amendment, as I recall-Mr. Casey, I think Mr. Shultz even ap-
peared, and during one of those meetings I asked the Chairman to
restate the position that he had cited earlier in a meeting, and that
was that nothing in the meeting should be divulged to the media,
nothing.
At that meeting that Mr. Casey participated in, we had top
secret information before us that was numbered. At the conclusion
of our meeting, we had to turn that information back in or it had
to be kept here in a safe in the Foreign Affairs Committee offices.
I brought up a second time that I wished the Chairman would
restate that nobody in this committee go out in the hall and tell
the media. The Chairman restated it a second time and at the con-
clusion of the meeting I brought it up a third time and the gentle-
man from Florida stood up and said, "I resent him impugning the
integrity of this committee," and I said I wasn't impugning the in-
tegrity, I thought it should be clear to every member of this com-
mittee that we don't go out in the hall and leak information that
was classified.
The meeting concluded and I walked out in that hall and three
members of this committee, three members of this committee were
standing before the cameras divulging information that they had
been admonished three times not to reveal.
I won't yield at this moment.
And I think that that one example should be enough to defeat
this measure. I think there is just no question that leaks do occur,
and very important national security information should be kept to
an absolute minimum as respects the numbers of Members of Con-
gress.
To expand it I think would be detrimental to our national inter-
est and I think it is something that should be defeated in this com-
mittee and shouldn't get to the Floor.
Chairman FASCELL. Mr. Gejdenson.
BILL RESTRICTS NOTIFICATION TO CONGRESSIONAL LEADERSHIP
Mr. GEJDENSON. I think that what this argument does is ignore
what Mr. Hamilton pointed out to begin with. The bill does not
provide additional information to all 535 Members in the House
and Senate, but to the leadership of the House, which includes the
chairpeople of the Intelligence Committee. If you look at the histo-
ry of this and previous administrations, concerning leaks, I can
guarantee you there have been more leaks out of the executive
branch than out of the people listed in this bill.
Mr. BURTON. If I might reclaim my time.
Mr. GEJDENSON. I think it is my time at this point.
Chairman FASCELL. I recognized Mr. Gejdenson for five minutes,
Mr. Burton. I thought you were finished.
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171
Mr. GEJDENSON. And so the simple point is, does this body want
its leadership to function in the dark or should we have the basic
information available to the leadership of the Congress?
I think that it is critical to include the heads of the Intelligence
Committees because, as good as the Majority Leader and the
Speaker are it is the Chairmen of the Intelligence Committees that
have day-to-day information and maintain an ongoing, continuous
effort in the intelligence field.
I think it is ludicrous to assume that we ought to keep those key
people in the dark.
Chairman FASCELL. Mr. Solomon is recognized for five minutes.
PENALTIES FOR UNAUTHORIZED DISCLOSURE
Mr. SOLOMON. Mr. Chairman, let me just be brief.
Mr. Leach, in responding to Mr. Kostmayer, hit the nail on the
head. There are those of us in this country who think we can do
anything we want to, politically. And Mr. Gejdenson brought out
the fact that more leaks come out of the administration than out of
Congress. I don't give a damn where the leaks are coming from,
leakers ought to be penalized and go to jail for it.
I have an amendment that is coming up later on during this
committee meeting which says, "Any person having received access
to classified information prepared pursuant to the provisions of
this title who knowingly and willingly discloses the substance of
that information without the authorization of the President, or
pursuant to the applicable Rules of the House of Congress of which
that person is a Member, officer or employee, shall be fined not
less than $1,000 nor more than $20,000 or imprisoned for not less
than 90 days nor more than five years, or both." And that is the
way it should be.
If it is classified information that is leaked, there ought to be a
penalty, and this amendment that I will be offering will clarify and
set forth these penalties.
VETERANS ORGANIZATIONS OPPOSE BILL
Now, let me say that Henry Hyde has talked at length on the
kinds of leaks that take place. I just want you to know, as the
ranking Republican on the Veterans Affairs Committee, that all of
the veterans' organizations throughout this country have recently
met, late last week, to be briefed on just what would happen if this
legislation becomes law.
I won't take the time to read this resolution, which is typical of
all of those veterans' organizations, but I assure you that every one
of you are going to be contacted before this bill reaches the floor, to
let you know that the American people don't want this bill.
I would submit this for the record. It is a resolution by the Re-
serve Officers Association of the United States.3
PERCEPTION OF CONGRESS AS SOURCE OF LEAKS
Mr. LAGOMARSINO. I thank the gentleman for yielding.
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172
The gentleman from Illinois, Mr. Hyde, pointed out that mem-
bers of the group that would be notified have leaked. And whether
the administration or the Congress is more guilty of leaking is a
debatable point; we could go on debating that.
But the perception is, with other countries and certainly Canada
in the case of the hostages in our embassy there, that the Congress
does leak, and the President wasn't supposed to tell anybody. That
is a fact of life. Maybe we don't like it, but that is a fact. That per-
ception is reality in the minds of those people.
So I think it is a very important point and we do have to allow
some leeway-very limited, as it is in the Broomfield amendment-
to the President.
HOSTAGE-TAKING AS NATIONAL SECURITY ISSUE
Mr. SOLOMON. Somebody mentioned over there that hostage-
taking is not a national security issue.
Well, let me tell you one thing. You know, if 1 hostage is taken,
fine; 2, 3, 4, 5, 10. What happens if thousands of American citizens
are being taken hostage across this world? You don't think that
will affect the national security? You don't think that will affect
the judgment of how you people vote on legislation?
Let me tell you, that is blackmail and it affects the national se-
curity of this country. We.ought to defeat this legislation.
Chairman FASCELL. Mr. Smith?
MAKING DETERMINATION ON CLASSIFIED INFORMATION
Mr. SMITH of New Jersey. I was intrigued by Mr. Kostmayer's
discussion on the difference between political information and clas-
sified information and as to who makes the determination.
I was wondering if the gentleman would answer a question. Who
does make that determination? Does he reserve unto himself the
right to determine that? Mr. Leach's comments just a few minutes
ago raised similar questions concerning the propriety of blabbing
confidential information to the press.
Secondly, has the gentleman ever leaked classified information
himself?
Mr. KOSTMAYER. I have never leaked classified information and,
under current law, the Espionage Act covers Members of Congress
and of the Executive Branch and everybody in this country. It is
perfectly adequate law which we have now which prevents this
kind of thing.
Mr. SMITH of New Jersey. The gentleman is saying that he has
never leaked information that has been regarded as classified infor-
mation from this--
Mr. KOSTMAYER. I certainly never leaked national security infor-
mation.
Mr. SMITH of New Jersey. Who is making the determination?
Mr. KOSTMAYER. The Solomon amendment-if I could respond,
the Solomon amendment, which we have not gotten to, would
make that judgment the administration's judgment entirely, and
allows them to remove any notification from the debate by simply
classifying it. That is the danger.
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Mr. SMITH of New Jersey. But you feel that you can make that
determination also.
Mr. KOSTMAYER. You don't believe that a Member of the United
States Congress can make a judgment about what kind of informa-
tion would jeopardize the security of the country?
Mr. SMITH of New Jersey. You then feel you have an ability to
leak it; is that what you are saying?
Mr. KOSTMAYER. It is inconceivable to me that the gentleman
from New Jersey could believe that we are so bad here that we
would, number one, not know what information would jeopardize
the security of our country, and, number two, knowing it, leak it.
Mr. SMITH of New Jersey. The gentleman I think is very aware
that Members of the House, the 535 Members, are not privy to the
kind of information that the Intelligence Committee would be, and
could very well leak information inadvertently, information that
they thought was not going to jeopardize the national security.
From the standpoint of a nation hostile to U.S. interests, the ques-
tion of a Member's intent is entirely superfluous.
Mr. KOSTMAYER. Name the one time it has happened. Mr. Hyde
didn't name a single incident in which the national security of the
United States was jeopardized by a Member of Congress.
Mr. SMITH of New Jersey. Surely the gentleman was listening
earlier in the debate when Mr. Hyde walked us through a large
number of specific instances. I think privately he and other Mem-
bers would gladly share additional examples with you.
I would point out to my colleague that when Mr. McFarlane ap-
peared before this committee, I asked our distinguished Chairman
Mr. Fascell, what happens if there is a breach of confidentiality by
members or staff of this committee? I asked, "what happens when
tomorrow we read almost verbatim what occurred in Executive
Session-secret session-what kind of mechanism and procedure
will be triggered to ascertain who leaked the information?" The
Chairman noted that he wasn't going to put everybody under oath
and no investigation whatsoever would ensue.
I would emphasize the point that the evidence clearly suggests
that secrets, whether you classify them under your own subjective,
highly questionable standard, Mr. Kostmayer, as political or of in-
terest to national security, secrets have been leaked and trust has
been broken.
Mr. KOSTMAYER. Can the gentleman tell me of an incident where
a Member has been charged or prosecuted?
DIFFERENT STANDARDS FOR MEMBERS OF INTELLIGENCE COMMITTEE
Mr. SMITH of New Jersey. If the gentleman wants to know if
there are incidents whereby members have compromised or leaked
secret information, the answer is clearly yes. Earlier Mr. Hyde
cited some examples here in open session of our Committee but said
to comment extensively would in fact confirm the validity of some
of the secrets that have been leaked. I trust that if the gentleman
seeks several specific examples he can obtain that information, on
a confidential basis, from the Chairman of the House Intelligence
Committee, Mr. Stokes.
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Moreover, there are two recent examples of Senators who were
caught red-handed leaking secret information. Mr. Durenberger,
former chairman of the Senate Intelligence Committee, has been
criticized by the Senate Select Committee on Ethics for
"appear[ing]. that [he was]: disclosing sensitive national security in-
formation and such- appearance jeopardized the mutual, confidence
which must exist between the Congress and the intelligence com-
munity."
The other Senator I have-in mind- is Senator Patrick Leahy. He
disclosed: without authorization- a committee document following a?
vote by the Iran-Contra, panel not to. release: the report. His- breach
of trust and confidentiality resulted in his resigning= from, the com-
mittee.
Mr: KOSTMAYER.. If-you- read- the- record-, in- the case of the Senate;
they are not charged with leaking national- security information:
And I happen. to: think.. that. Mr. Leahy; although- a- member of my
own party, acted -inappropriately by leaking information.
Once you, get on the Intelligence Committee, you, don!'t do that.
But it wasn't national: security information,- it was politically em-
barrassing, information:
Mr. SMrrx of New Jersey. Would, the gentleman yield?
Chairman FASCELL. His time has expired.
Mr. BURTON. Will the gentleman yield?
When the bombing of the Gulf of Sidra in Libya. took place, Sam
Donaldson reported'when: the planes-were. in the air that there was-
a. bombing --mission that was- in operation at that time. Two.- hours-
before the planes got there, he was talking on the White House
lawn- and one of the members of the Senate= Intelligence Commit-
tee-I don't remember. who it was, but I believe it was Senator
Pell-was taken to task for that.
The gentleman from Pennsylvania keeps asking for an example
of where national security was jeopardized, and I submit to you
that what could be more. of an example than the bombing of Libya.
when Muammar Qaddafi said we couldn't cross the line of death in
the Gulf of Sidra. That took place. He is not answering right now,
but I wish he would.
Chairman FASCELL. The gentleman's time has expired.
Mr. Bereuter?
MEMBERS OF CONGRESS SUBJECT TO CLASSIFICATION LAWS
Mr. BEREUTER. Thank you, Mr. Chairman.
In part we have a problem of definition of "national security." I
look back at my own involvement as an army counterintelligence
officer responsible for security matters and the .guarding of classi-
fied information, and I am appalled at what I have seen in the
Congress in the 10 years that I have been here.
If we had seen that situation in the military units, we would
have issued court martials and people would have ended up in
Leavenworth.
There are three general categories of classified information. All
of those categories are based upon some degree of jeopardy to the
national security-confidential, secret and top secret-and elabora-
tions on those three basic categories. When Members here are ap-
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175
prised about the fact that they are going to receive a classified
briefing, they are often given in fact the level of classification. But
it is not up to a Member of Congress to decide that this informa-
tion is a political matter and not deserving of the classification.
Those are national security classifications. That is how the law
works. Members of Congress are subject to them as well.
The gentleman from California and the gentleman from Illinois
have both pointed out how leadership, key leadership, has been
found to be jeopardizing the national security. And it is only be-
cause of the ways of the Senate, the methods of the Senate, that in
fact charges are not brought against the Members. They are simply
given an opportunity to exit.
SYSTEM LIMITS PRESIDENTIAL FLEXIBILITY
I think we need to look also at what the gentleman from Indiana
offers in his arguments. He makes as good a case as can be made,
but in fact the disclosures have come there. In fact, there is a limit
on Presidential flexibility. It is not specific by narrowing in the
language of the bill the limits on the flexibility of the President.
The limitation comes from the fact that the opportunities for
covert action are narrowed by the probability, or at least the possi-
bility, of disclosure. The range of actions that the President has
available to him are limited by the kind of system that we have
established.
BROOMFIELD AMENDMENT STRIKES PROPER BALANCE
Now, I think, despite the fact that we have had egregious prob-
lems with lack of notification to Congress by this administration
and those bad situations tend to lead us toward bad law, the situa-
tion in the Broomfield amendment is very tightly defined and nar-
rowly construed. I think it contains the proper balance between
protecting the national security and truly exceptional cases and
dealing with the problem that we have on inappropriate disclosure,
because Members feel it is on their shoulders in certain cases to
decide what is political information and what is classified informa-
tion.
Gentlemen and ladies of the committee, we do not have that
option. That is a problem here. The fact that we don't recognize it
only leads us to the conclusion that we have to make, that a
change is needed.
Chairman FASCELL. Mr. Torricelli.
BALANCING RISKS OF LEAKS VS. FAILED COVERT ACTIVITIES
Mr. TORRICELLI. I do not want to keep my colleagues long, but
wanted to add a few thoughts. It appears to me that the committee
is seeking a policy without any risk, in a procedure that has no
danger, no danger of leaks, no problems of actions by the executive
that are not, indeed, in the national interest.
I want to submit that those risks, a policy of no risk, simply
cannot be achieved. No matter what the record, the possibility re-
mains of a revealing of information by Members of Congress who
are consulted. And if there is no notification, the continuing real
prospect of policy initiatives that are at variance with the national
interest.
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The Broomfield amendment, it appears to me, the practical effect
of it is to opt for the second danger. To recognize that there are
twin problems. But that we would rather encounter the second
problem of initiatives being taken by the executive that are not in
our international interest and not identified by the Congress.
I believe that more than anything else, that amendment con-
cludes that we have learned nothing from the Iran/Contra affair.
Because contrary to what Mr. Hyde suggested, the real price of the
Iran/Contra affair is not going to be borne by Ronald Reagan. It is
not that the administration, this or others, have to answer for
things that they do that are not in our national interests in a polit-
ical price. That price is paid by the country. Continuously. And will
be year after year.
As you look at the history of covert activities and the failure of
the Congress to be informed, the expertise, the knowledge and ex-
perience of the Members of these institutions to come to bear on
national policies, I believe you can see the policy procedures have
been in error. The fact is that a U-2 policy by the Eisenhower Ad-
ministration which had to come to this Congress for advice, to look
at the consequences of failure, would have been difficult.
The Kennedy Administration, undertaking covert activities
against Cuba, recognizing the potential price, the failures from the
Bay of Pigs, the assassination attempts, would have been difficult,
if Cambodia incursions having come before the Congress and the
Iran/Contra affair, having-to. come before. Congress- to explain, to
explain the consequences, would have been difficult.
No doubt Members of the minority who have cited the case that
there are risks of Members of Congress revealing information, that
risk is very real. But so, too, are these other consequences on na-
tional policy. This country is going to pay for the Iran/Contra
affair for years. The credibility of this country, young sailors who
might be killed by those weapons that were sold to the Ayatollah.
I don't quarrel with Mr. Hyde, leaking has taken place and it
may take place again and it is dangerous, it is tragic, it is unlaw-,.
ful. But I don't know any other way to rein in this administration
or any other administration, to use the expertise of this body, to..
insure the policies that are undertaken are thoughtful, are wise,
and are in the national- interest.
I believe we have a twin risk. I hope we can do our best to make
the risk of leaks from this Congress at a minimum. But I believe as
you look at those twin risks, we are the better for not having the
Broomfield amendment and for insuring the administration must
thoughtfully consider its own policies, come before this Congress,
keeping the number of Members who are exposed to that informa-
tion to a minimum and guaranteeing the national interests
through this act.
Chairman FASCELL. Mr. DeWine.
CONGRESSIONAL LEAKS CITED
Mr. DEWINE. Let me briefly respond to Mr. Kostmayer's state-
ment that there have been no examples given involving our nation-
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al security. One that comes readily to mind appeared in a very
public source, the Reader's Digest. I am not vouching for its validi-
ty, but it has not been disputed. And it had to do with the Achile
Lauro, where it was reported that a prominent Member of the
United States Senate went to the CIA, was briefed very early in
the morning and got in his car and proceeded to one of the early
morning talk shows and inadvertently, I assume and I honestly
think so, made a mistake on national TV. He disclosed some infor-
mation which compromised some of our sources. And I can get the
gentleman the article that appeared and to my knowledge it has
never been disputed at all. That is one example.
Another example that comes to mind and we don't know for sure
the source, at least I don't. But six months or a year before our
planes bombed Libya there was reported on the front page of the
Washington Post an account about a proposed covert operation
that was proposed against Libya.
I have no idea whether that was true or not and have no way to
vouch for the story's validity, but if it was true it would indicate
that there was a leak either in the administration or on Capitol
Hill which apparently scuttled a covert operation that ultimately
might have saved lives and been very effective.
So those are just two examples. The first we absolutely know be-
cause it has not been disputed; it was a congressional source. The
Senator was on nation-wide TV. So you have the video tape to
show it. So there is example after example. So I think the gentle-
man is simply incorrect when he states that all we have shown are
political leaks and they are not leaks that compromised national
security or in any way compromised our own men and women in
the field which to me is the real threat.
This debate has gone on. I don't think anybody will be swayed by
anything at this point. To me, the bottom line is this. If we vote for
the bill the way it is written today, what we are saying is, we
cannot envision that there never will be a circumstance where that
48-hour rule can be violated.
If we vote down the Broomfield amendment what we are saying
is we have a crystal ball and we can look into the future and we
know that there never will be an instance where we will need any
escape hatch. You are eliminating any escape from this. You are
saying that in every single circumstance you have to give the 48-hour
notice, that there is no circumstance we can envision where it
would be in our national interest not to give notice. So I am voting
for the Broomfield amendment. I think that not only is it bad
policy the way the bill is written today, I think it is unconstitution-
al.
Chairman FASCELL. Mr. Solarz.
CONSULTATION PROCESS INCREASES RISK OF LEAKS
Mr. SOLARZ. Thank you very much, Mr. Chairman. I think this is
a very close question. And I think there are some very powerful
arguments on both sides of the issue. I think it is unfortunate, Mr.
Chairman, that this discussion has degenerated into a debate over
leaks and the apparent incapacity of the Congress to keep confi-
dences.
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I think all of us can agree that from time to time there have
been leaks emanating from the Hill. Those are unfortunate.
In some instances they may have caused severe damage to the
nation. And surely we can all agree that steps need to be taken to
diminish the possibility that these disclosures will take place in the
future. But I would assume we -could also all agree that the execu-
tive branch is also responsible for many leaks.
During the testimony we received on this bill, it became clear
that within the framework of the procedures the administration
itself has established for the consideration of covert operations,
that there is a National Security Council planning group on which
the Secretary of State and the Secretary of Defense and the Chair-
man of the Joint Chiefs and the Vice President and a number of
other key officials in the administration serve.
When they are informed about the possibility of a covert oper-
ation, they in turn consult with a limited number of people within
their agencies. At the end of -the day there are a few dozen people,
at the very least, within the executive branch who are informed
about these covert operations and that certainly creates a certain
risk that information with respect to the operation will be leaked.
We know, for every example that Mr. Hyde gave of a leak ema-
nating from the Hill, other examples and probably more examples
could be given of information which leaked from the executive
branch. Yet if somebody were to say to the President, Mr. Presi-
dent, when a covert operation is being considered, you should cut
the Secretary of State or the Secretary of Defense out of the loop or
the Chairman of the Joint Chiefs out of the loop, because we know
that State and Defense and the Chiefs, from time to time, have
leaked information in the past and this could compromise the secu-
rity of the country, I suppose the President would reject that rec-
ommendation out of hand, saying that he needs the advice of his
most trusted advisors.
OPPOSITION TO EXCLUSION OF SENIOR INTELLIGENCE COMMITTEE
MEMBERS
I believe it bears repetition that what the gentleman from Indi-
ana, Mr. Hamilton said, is very relevant to this discussion: When
Secretary Carlucci testified before our committee, he made it very
clear that he was not opposing this legislation because of any con-
cern on his part that the Gang of Eight would leak. - I -think he
would be concerned if 535 Members of Congress had to be in-
formed, but he wasn't concerned about the potential for leaks from
the Gang of Eight because, as the gentleman from Indiana.pointed
out, these are the leaders of Congress. These are the ones in- whom
we have placed our trust.
And I might say parenthetically here that one of the problems I
have with Mr. Broomfield's amendment is that he would reduce
the Gang of Eight to a Gang of Four, eliminating the chairman and
ranking minority Members of the Intelligence Committee who, by
virtue of their experience as senior Members of the Intelligence
Committee, are probably the four Members of the House and
Senate who are in the best position to give advice to the President
with respect to covert operations. By contrast, the Speaker or the
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I 179
majority leader and the minority leader, while their wisdom is cer-
tainly to be sought, may not have the same kind of expertise as the
senior Members of the Intelligence Committees. So if you were to
narrow it to a Gang of Four, it would be better to have the four
leaders of the Intelligence Committees rather than the four leaders
of the House and Senate.
I think it is better to have a Gang of Eight and to combine the
political wisdom with the expertise of the congressional leadership
and the committee leadership.
BENEFITS OF CONSULTATION VS. RISKS OF DISCLOSURE
Let me just say in conclusion, Mr. Chairman, that what we have
to do here is to balance conflicting interests. I certainly can con-
ceive of circumstances where the President might feel it would be
inappropriate to notify the Gang of Eight and there may be circum-
stances where most of us would agree that it probably would be
better for him not to do so.
The problem is that there are also circumstances where we
would all agree that it is in our interest for the President to share
his plans for a covert operation with the Gang of Eight, precisely
in order to get the benefit of a perspective from outside the ranges
of his own administration.
There have been three instances since the Intelligence Act was
adopted where the President did not consult with the Intelligence
Committees. Two of those three turned out to be disasters for the
United States: the attempted rescue mission in Iran and Iran/
Contra affair. It is certainly possible and plausible that if the Presi-
dent had consulted with the Gang of Eight or with the Intelligence
Committees about these two covert operations, that the nation
would have been spared a great embarrassment and a great set-
back.
Finally, with respect to the Canadian exfiltration, I suspect that
if the Canadians had been told that the President planned to con-
sult not with 535 Members of the House and Senate, but with the
Gang of Eight, that the Canadians would have withdrawn their ob-
jections. I rather doubt that there would have been any leaks
which would have compromised that particular operation.
So when one has to balance the hypothetical possibility of a situ-
ation in which it would be best not to consult, against the fact that
there are situations where we can benefit from these consultations
and the mistakes which have been made without such consultation,
I come down in favor of the legislation and against the Broomfield
amendment because in the long run we will have a wiser and
sounder policy if the leadership of the Congress is involved than if
it is excluded.
Chairman FASCELL. Mr. Dornan.
INCIDENCE OF LEAKS BY MEMBERS OF CONGRESS
Mr. DORNAN. I agree with my colleague, Mr. Solarz, that there
are strong arguments on either side and I will concede that the
leakiest operation in the city of Washington, DC, is the White
House itself. I just read Larry Speakes' book over the weekend. A
more disgusting and craven chronology of leaking and back biting I
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have never read in my life. In his public life, he deserves every-
thing that has happened to him.
Nevertheless, I have in front of me, Mr. Chairman, and Chair-
man of the Subcommittee on Europe and Middle East, Mr. Hamil-
ton, a letter you sent out, dated May 5, 1988. That letter refers to a
group of members who were privileged to an executive session
meeting with the Egyptian Minister, Field Marshall Abu Kazala.
Mr. Hamilton writes about an. article which appeared in the
March 28 issue of Near East Report, which contained details about
what was discussed in the meeting, including direct quotes of the
remarks of the Defense Minister. And the letter goes on with some
annoyance to say, "I simply do not know who is responsible." But
it is clear, Mr. Hamilton writes, "that someone went out of a closed
session and reported in detail to the Near East Report."
I also have before me a letter that was just shown to Mr. Kost-
mayer that was written to Jim Wright, our Speaker, from Edward
Fox, assistant secretary of legislative affairs who used to sit behind
us here as one of our staffers. He says, "Dear Mr. Wright, the New
York Times, May 2, carried a highly detailed story by reporter
Robert Pear on this year's Javits Report," named after Jacob
Javits. The report was provided to the New York Times by a
Member of Congress.
"I wish to express the department's concern about this unauthor-
ized disclosure of classified information." It goes on to say that
"press stories such as this harm not only the administration, Con-
gress, our foreign friends and allies as well, the article confused aid
with cash sales, blurring the line between recipients of scarce secu-
rity dollars and cash cuts."
"It overlooks the consultation process between Congress and the
administration, gives the impression that the Javits Report is the
basis of a master strategy rather than a best effort to project possi-
ble sales and unauthorized disclosure will raise doubts about the
government's ability to maintain confidentiality with every one of
the 32 nations listed in a report meant to provide focus for confi-
dential discussions between Congress and the administration on as-
pects of our security relations worldwide."
Now I can recall, Mr. Chairman, the former Chairman saying to
me personally in the doorway over here that he is sick of leaks
coming out of our closed sessions and if it happens again, he will
excoriate two Members publicly if they don't stop leaking. This was
in 1982 after a session with Secretary of State Alexander Haig,
shortly before he resigned.
I think it is peculiar when a Member like Mr. Kostmayer says
that these are "political leaks" and not national security leaks. I
have taken note that over 50 Members have stood in front of and
crawled on top of the B-2 stealth bomber and not a whisper of that
program was leaked to the press. Only a handful of Members know
of the existence of the F-19 stealth fighter, not a whisper of that
has gotten into the press. I believe it is because Members can see
tangible evidence with weapons situations that a slip of the lip will
sink the ship.
But when it comes to foreign policy matters, some Members feel
that they are qualified to judge what is right and what is wrong.
They make the determination whether or not their leak has any-
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181
thing to do with national security policy. So they proceed to leak
and then they will use as an excuse the leaks from the White
House, as a precedent which has occurred even under a tough con-
servative President.
PRESIDENTIAL FLEXIBILITY NEEDED IN WAR AGAINST TERRORISM
For this reason I think that the Broomfield amendment is rea-
sonable, it tightens up the focus of our responsibility under the
Constitution to protect national security. I would even want a
President Dukakis to have the same abilities that President Carter
had when he was taking core samples of the sand trying to rescue
our hostages in Iran. I think we are overreacting here to the Iran/
Contra mess and that we should not take away from a Dukakis or
Bush, the ability to handle terrorism. We have not had a declara-
tion of war since December 8, 1941, and we probably won't have
one for the rest of our lives.
Members should be put on notice that if they leak, it will be con-
sidered treason. We have to have this thing tightened up. I think
we are wasting our time if we don't adopt the Broomfield amend-
ment which is reasonable and logical and is consistent with the
legal process. The President is certainly going to veto anything
that restricts his ability to fight terrorism and to construct a for-
eign policy. This amendment represents the classic struggle be-
tween the executive branch and Congress over jurisdiction in the
foreign policy field. Let's give our Commander-in-Chief maximum
flexibility.
I would hope that the next White House will clean up the leak-
ing syndrome. Vote for the Broomfield amendment because it rein-
forces our constitutional responsibilities in line with this rigorous
debate that has gone on since the continental Congress.
I thank the Chairman.
Chairman FASCELL. Mrs. Meyers.
BROOMFIELD AMENDMENT OFFERS REALISTIC APPROACH TO
CONSULTATION
Mrs. MEYERS. Mr. Chairman, I wonder if maybe we aren't having
a somewhat naive discussion here. I ask the Members to picture
themselves as President of the United States, and a country comes
to you and says, we can give you a great deal of help with your
hostages, some of them that we have in our embassy, but you are
absolutely not to tell anyone.
Can any of you picture yourself looking at that person and
saying, well, of course, the Secretary of State will know, a couple of
my top security people here in the White House will know and
then I will tell eight people on the Hill and, of course because of
them, probably another three or four very top ranking staff people
will know, so that there will only be about 20 people involved.
I don't see the President making that kind of a response. I don't
care what we do here today. If lives are at stake, I think the Presi-
dent is going to do what is right and what he can do to save those
lives. I am somewhat appalled, if I understood correctly, what is
being said, or suggested, that if classified material is political
in nature then it is all right to leak it. I am not sure that is
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what was being said, but if it is, I am appalled. We have a kind of
an adversarial kind of government and almost everything that we
do is political in nature.
I think that we should be more realistic in our assessment of the
situation. I, too, am appalled by the Iran/Contra affair and admit-
tedly, everyone in this room is saying that it is the only time that
the failure to tell Congress has happened, that any Member in this
room could condemn. The other time was when Jimmy Carter
made the attempt to rescue the hostages or when Reagan dealt with
the Canadians over the Iranian hostages.
I think that we should be, more realistic in our approach and sup-
port the Broomfield amendment.
BILL FULFILLS OVERSIGHT RESPONSIBILITY OF CONGRESS-
Chairman FASCELL. Well, let the Chair say I am opposed to the
Broomfield amendment. We either assume the responsibility of
oversight or we don't. If leaks are the criteria, then we wouldn't let
the administration do anything either because of all the leaks at-
tributable to the administration. Not this one particularly, any ad-
ministration.
It is just the nature of the beast. You have eight people on the
national security planning group, and. if we can't work it out be-
tween the Executive and the Congress with respect to those mat-
ters that are vital to the national security of the United States,
maybe we ought to have a different system.
But I am not for a different system. We have to make this one
work and we are going to have to do the best we can in an open
society. This is a reasonable balance, it appears to me. The legisla-
tion doesn't stop a President. It simply requires him to give notice.
VOTE ON THE BROOMFIELD AMENDMENT
The question is on the Broomfield amendment and the clerk will
call the role.
Mr. BRADY. Mr. Fascell.
Chairman FASCELL. No.
Mr. BRADY. Mr. Hamilton.
Mr. HAMILTON. No.
Mr. BRADY. Mr. Yatron.
Mr. YATRON. No.
Mr. BRADY. Mr. Solarz.
Mr. SOLARZ. No.
Mr. BRADY. Mr. Bonker.
Mr. BONKER. No.
Mr. BRADY. Mr. Wolpe.
Mr. WOLPE. No.
Mr. BRADY. Mr. Mica.
[No response.]
Mr. BRADY. Mr. Crockett.
Mr. CROCKETT. No.
Mr. BRADY. Mr. Gejdenson.
Mr. GEJDENSON. Pass.
Mr. BRADY. Mr. Dymally.
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Mr. DYMALLY. No.
Mr. BRADY. Mr. Lantos.
[No response.]
Mr. BRADY. Mr. Kostmayer.
Mr. KOSTMAYER. No.
Mr. BRADY. Mr. Torricelli.
Mr. TORRICELLI. No.
Mr. BRADY. Mr. Smith.
[No response.]
Mr. BRADY. Mr. Berman.
[No response.]
Mr. BRADY. Mr. Levine.
[No response.]
Mr. BRADY. Mr. Feighan.
Mr. FEIGHAN. No.
Mr. BRADY. Mr. Weiss.
Mr. WEISS. Pass.
Mr. BRADY. Mr. Ackerman.
[No response.]
Mr. BRADY. Mr. Udall.
[No response.]
Mr. BRADY. Mr. Atkins.
Mr. ATKINS. No.
Mr. BRADY. Mr. Clarke.
Mr. CLARKE. No.
Mr. BRADY. Mr. Fuster.
[No response.]
Mr. BRADY. Mr. Bilbray.
Mr. BILBRAY. No.
Mr. BRADY. Mr. Owens.
Mr. OWENS. Pass.
Mr. BRADY. Mr. Sunia.
[No response.]
Mr. BRADY. Mr. Broomfield.
Mr. BROOMFIELD. Aye.
Mr. BRADY. Mr. Gilman.
Mr. GILMAN. Aye.
Mr. BRADY. Mr. Lagomarsino.
Mr. LAGOMARSINO. Aye.
Mr. BRADY. Mr. Leach.
Mr. LEACH. Aye.
Mr. BRADY. Mr. Roth.
[No response.]
Mr. BRADY. Ms. Snowe.
Ms. SNOWE. No.
Mr. BRADY. Mr. Hyde.
Mr. HYDE. Aye.
Mr. BRADY. Mr. Solomon.
Mr. SOLOMON. Aye.
Mr. BRADY. Mr. Bereuter.
Mr. BEREUTER. Aye.
Mr. BRADY. Mr. Dornan.
Mr. DORNAN. Aye.
Mr. BRADY. Mr. Smith.
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Mr. SMITH. Aye.
Mr. BRADY. Mr. Mack.
[No response.]
Mr. BRADY. Mr. DeWine.
Mr. DEWINE. Aye.
Mr. BRADY. Mr. Burton.
Mr. BURTON. Aye.
Mr. BRADY. Mrs. Meyers.
Mrs. MEYERS. Aye.
Mr. BRADY. Mr. Miller.
[No response.]
Mr. BRADY. Mr. Lukens.
[No response.]
Mr. BRADY. Mr. Blaz.
Mr. BI.Az. Aye.
Mr. BRADY. Mr. Gejdenson.
Mr. GEJDENSON. No.
Mr. BRADY. Mr. Weiss.
Mr. WEISS. No.
Mr. BRADY. Mr. Owens.
Mr. OWENS. No.
Mr. SMITH of Florida. Mr. Chairman.
Chairman FASCELL. Mr. Smith.
Mr. SMITH of Florida. How am I recorded?
Chairman FASCELL. Nothing.
Mr. SMITH of Florida. I vote no.
Mr. BRADY. Anybody not recorded?
Mr. SMITH of Florida. I ask that roll be held open one additional
minute.
Chairman FASCELL. Mr. Berman.
Mr. BERMAN. No.
Chairman FASCELL. Announce the vote.
Mr. BRADY. On this vote, there are, 20 nayes, 13 ayes;
Chairman FASCELL. And so the amendment is not agreed to.
THE SOLOMAN AMENDMENT
Are there any further amendments?
Mr. Solomon?
Mr. SOLOMON. I have an amendment at the desk.
Chairman FASCELL. The Solomon amendment will please be dis-
tributed.
Mr. BRADY. Amendment to the Substitute for H.R. 3822, offered
by Mr. Solomon, page 10, after line 24, insert the following: Unau-
thorized Disclosure of Classified Information, section 6--
Chairman FASCELL. Without objection, further, reading of the
amendment is dispensed with. .
[The amendment offered by Mr. Solomon follows:]
AMENDMENT TO THE SUBSTITUTE FOR H.R. 3822 OFFERED BY MR. SOLOMON
Page 10, after line 24, insert the following:
UNAUTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION
SEC. 6. Title V of the National Security Act of 1947 (50 U.S.C. 413, et seq.) is
amended by adding at the end thereof the following new section:
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"UNAUTHORIZED DISCLOSURE OF CLASSIFIED INFORMATION
"SEC. 506. Any person who, being or having been an officer or employee of the
United States or a person otherwise having had authorized access to classified infor-
mation produced as a result of the provisions of this title, knowingly and willfully
discloses the substance of that information to an individual who is not authorized to
receive it, except with the authorization of the President or pursuant to the applica-
ble rules of a House of Congress of which that person is a Member, officer or em-
ployee, shall be fined not less than $1,000 nor more than $20,000 or imprisoned for
not less than ninety days nor more than five years, or both.".
Chairman FASCELL. The gentleman from Indiana.
Mr. HAMILTON. Mr. Chairman, I would like to reserve a point of
order on this amendment.
Chairman FASCELL. The point of order is reserved.
The gentleman from New York is recognized in support of his
amendment.
AMENDMENT IMPOSES PENALTIES FOR LEAK OF INFORMATION
Mr. SOLOMON. Since we have had some debate on this issue al-
ready, let me say that this amendment is straightforward and puts
some teeth into this bill. Specifically, it would make clear to Mem-
bers of Congress, to their staffs, and to the executive branch as
well, that there will be a price to be paid for leaking information
about the covert operations which are the subject of the notifica-
tion requirement in this bill.
I just ask you all: Is that so terrible? I ask those of you who sup-
port this bill, why do you want to set up a procedure and then ne-
glect to protect it? And that is all this amendment proposes to do,
to impose penalties on any person in the legislative branch and the
executive branch alike who leaks information about activities regu-
lated by this particular bill.
Mr. Chairman, isn't it about time we started taking our responsi-
bilities seriously? I don't need to go down a laundry list of leaks.
Our colleague, Henry Hyde, did that for us earlier today, and at
the hearing last week; every example he cited concerned the Iran-
Contra Committee alone. Everything you can imagine: from the
identity of a CIA under-cover officer; to the contents of the Secre-
tary of State's private interview; to the secrets of an Assistant At-
torney General's testimony; to secret documents; to the identities of
foreign countries; and allegations of every stripe were fair game.
And they all found their way into the press, courtesy of committee
Members and staff.
Mr. Chairman, that is wrong. Here is a recent one for you which
was mentioned I think by the gentleman from California, Mr.
Dornan. But the ink wasn't even dry on this year's edition of the
Javits report before a Member of Congress made sure the New
York Times had a copy of it and was drawing its own inaccurate
conclusions. And remember, the Javits report itself is a part of con-
sultation or notification process between the executive branch and
the Congress.
If we don't have enough self-respect, at least respect the sensibili-
ties of our friends and allies around the world. Let's at least try to
give them some assurance that they can deal with the United
States with some measure of consistency and confidentiality. Let's
make clear to them that we have one Secretary of State and not
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535. Too many people in this town are seeking influence without
responsibility. That is the problem, and all of the consultations and
notifications in the world will not mean anything unless people un-
derstand there are consequences for their actions.
Mr. Chairman, existing espionage laws require prosecution to
prove that there was. intent to injure the United States or to give
advantage to other countries. Dante Fascell has mentioned, and
rightly so, that we ought to have oversight over covert activities;
and, yes, Mr. Chairman, you are right, but we should not have veto
power. And unless we enact this amendment imposing specific pen-
alties for leaking classified information regarding the 48-hour noti-
fication, any member of this committee, any staff member out there,
anybody can go out and leak it to the press and absolutely nothing
will be done about it.
PENALTIES IMPOSED IN SOLOMON AMENDMENT
So Mr. Smith of Florida complained other countries were setting
the policies of this government, but let me tell you when other
countries lose confidence in us, it is going to affect the national se-
curity of this country. So I would hope this amendment would be
enacted. Basically all it says is that there is going to be a minimum
penalty, a minimum penalty of $1,000, or a maximum of $20,000, or
there is going to be a minimum penalty of, 90 days in jail or a max-
imum of five years, or both.
So really all we are saying is if any of you do leak classified in-
formation, the minimum penalty we are going to charge you is a
lousy $1,000 for jeopardizing this country.
ADMINISTRATION POSITION ON SOLOMON AMENDMENT
Mr. WEISS. Will the gentleman yield?
Will you indicate to us whether, in fact, the administration has
taken a position on this amendment and what that position is?
Mr. SOLOMON. The administration has not taken a position. We
did not ask one of them.
Mr. WEISS. Thank you.
AMENDMENT EXCEEDS SCOPE OF COMMITTEE'S JURISDICTION
Chairman FASCELL. I would like to address myself to the amend-
ment, if I may, and say I am in strong opposition to the amend-
ment. The Parliamentarians of the House advise the committee
this amendment technically is not in order, is not germane. But
aside from that, let's examine what this amendment does.
First, it broadens the scope of the espionage laws as it may apply
to an administration official who supplies the information to the
Committee on Intelligence. That may be desirable, it may not be, I
don't know. But that is what. it does.
It also, of course, applies to Members and staff who in some way
come into possession of the information as a result of information
that goes to the Permanent Select Committee and provides for a
criminal penalty. It may be desirable to write this into the criminal
law of the United States, I don't know. It seems to me, however,
that this is a serious matter which needs to be considered by the
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187
Judiciary Committee, that committee having jurisdiction over the
criminal statutes and not this committee.
Another important aspect of this matter, as I see it, is that it
would certainly seem to change the whole constitutional concept of
free speech and debate. I don't know that we want to make that
quick a judgment on such an important constitutional issue.
Now, maybe the Congress ought to pursue the issue. But I am not
prepared and I don't think this committee is prepared, to deal with
the complex questions concerning free speech and the protection
that surrounds a Member of Congress with respect to his right to
speak in the pursuit of his duties in the Congress of the United
States. I am not talking about outside, I don't know that we ought
to take that lightly. We need testimony. Obviously, there are more
than two sides on this matter, and it ought to be carefully consid-
ered by the committee of jurisdiction that deals with the criminal
statutes. It is not a matter which ought to be considered by this
committee.
I don't want to rule on the point of order, I would just as soon
have a vote on this matter and let the appropriate committee of
the Congress deal with the subject if that is the intent of propo-
nents.
Mr. Kostmayer, for debate only.
EXISTING LAW ADEQUATELY ADDRESSES UNAUTHORIZED DISCLOSURE
Mr. KOSTMAYER. Mr. Chairman, we covered a lot of this territory
in the discussion of the Broomfield amendment, but I would like to
say a couple things without extending this debate much longer. I
would like to point out the gentleman from New York raised the
issue of disclosing the names of intelligence agents or CIA agents-
all of us understand and recognize how dangerous that is-and he
then said, and I quote, "that kind of thing currently is fair game."
The fact of the matter is that that information is just wrong, as
is a lot of the information he has given. The fact of the matter is
current law, 50 U.S. Code 421, a bill we passed in .1982, called the
Intelligence Identities Protection Act of 1982, prohibits any individ-
ual from identifying or revealing the name of these individuals. So
to suggest this amendment is necessary for that kind of thing is in-
accurate.
Secondly, I want to say that existing law makes, I think, some
important distinctions which the Solomon amendment fails to
make when it comes to revealing this kind of information, I am
talking about the Espionage Act, and in part it reads-and I
quote-"For the purpose of obtaining information respecting the
national defense, with intent or reason to believe that the informa-
tion is to be used to the injury of the United States or to the advan-
tage of any foreign nation."
That characterizes the kind of information you can't leak. But
the gentleman from New York's amendment changes that very
dramatically. He would cover all information that the administra-
tion chooses to classify. Anything that this administration or any
other administration wants to classify can't be leaked by members
of the Intelligence Committee, and what that means is that the ad-
ministration comes up before the Intelligence Committee and tells
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the committee that leading members of the Salvadoran Govern-
ment are responsible for killing American -citizens in El Salvador,
and they could call that classified information.
This amendment provides a mechanism to this administration, or
to any other administration, to simply exclude from congressional
and public debate any information they don't want covered because
it doesn't speak just to information which would jeopardize our na-
tional security, it speaks to all classified information. I don't think
we should give the executive., the right to do that, not this execu-
tive, not any executive.
We have adequate law in this regard. We have the Espionage
Act. In the Morrison ruling of not very long ago, the Fourth Circuit
Court of Appeals ruled leaks are covered by the Espionage Act. Mr.
Morrison himself is currently serving in prison for leaking infor-
mation, not to a foreign government, but to a defense publication.
The courts have now ruled that the Espionage Act covers leaks
that members of the executive, that Members of Congress, that or-
dinary citizens, such as Mr. Morrison, make.
The proposed amendment would be bad law. It is unnecessary, it
gives the administration the right to simply rule out any informa-
tion which Congress wants to consider or which the public should
have the right to know about because the administration finds it
embarrassing. And the question of leaks is currently covered under
law, and the amendment is unnecessary.
I urge it be defeated.
Chairman FASCELL. Mr. Lagomarsino.
AMENDMENT APPLIES TO INFORMATION RECEIVED UNDER 48-HOUR
NOTIFICATION
Mr. LAGOMARSINO. I yield to the gentleman from New York, Mr.
Solomon.
Mr. SOLOMON. I thank the gentleman from New York.
Let me point out to =the chairman and Mr. Kostmayer, of course
you know if it were not the question of leaks on this 48-hour notifi-
cation, probably we would have unanimous support for the legisla-
tion. It is the concern about leaks.
Now, in spite of what the good chairman has said and what my
good friend, Mr. Kostmayer has said, this amendment only deals
with the 48-hour notification, it does not deal with any of the other
espionage cases or any other leaking. As a matter of fact, what I
am concerned about, if you look at existing law, it says, "which in-
formation the possessor has reason to believe is used to the injury
of the United States or to the advantage of any other foreign
nation." That is the construction of it.
Finally, as far as speech and debate are concerned, Mr. Chair-
man, if you read the language in the amendment, it says "Except
with the authorization of the President or pursuant to the applica-
ble rules of a House of Congress". Now, that means speech and
debate on the Floor of this Congress and any other rules this Con-
gress might adopt affecting House Members.
So, Mr. Chairman, I would urge support of the amendment. The
only way you are going to get this bill through the House and to
the President's desk for his signature is if we enact the Broomfield
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189
amendment along with this penalty on leaks...Then you might-have
a bill that becomes law, which is what all of you. on that side of the
aisle want, and maybe what we want too.
Otherwise I think we are going to be able to sustain a veto.
Think of that when you vote on this and when you have a chance
to- vote on the Broomfield substitute on the Floor of Congress.
Chairman FASCELL. Mr. Wolpe.
Mr. WoLPE. Thank` you, Mr. Chairman
The previous speaker just referred-, to- the, speech and debate
clause. I think it is clear the amendment before us does, in fact,
raise some serious constitutional questions. I understand House
Counsel is present here. I wonder if ,we might ask him to share
with us his opinion as to whether this amendment, as it is now
crafted, raises constitutional concerns.
STATEMENT OF STEVEN ROSS,.GENERAL COUNSEL TO THE CLERK OF THE
HOUSE
Mr. Ross. Let me introduce myself. I am Steven Ross,. General
Counsel to the Clerk of the House. In that capacity, our office rep-
resents the House, its Members, officers and committees in. litiga-
tion, and at various times our office is called upon to provide legal
advice on matters respecting the prerogatives and privileges of the
House.
EFFECT OF AMENDMENT ON SPEECH AND DEBATE PRIVILEGE
The question is whether the amendment would raise questions
under the speech or debate privilege or would contravene the privi-
lege. The amendment, as I read it, and I must say the interpreta-
tion given by its author in his remarks just a few seconds ago, dif-
fers from my understanding : of the amendment as I read it. The
amendment as I read it would apply to statements made by Mem-
bers on the=Floor since it simply says "any disclosure".
The gentleman from New York in his interpretive remarks indi-
cated that it is his reading of his amendment that any remarks
made that conform with any House rule would be permissible
under the amendment. Presumably, that would allow any remarks
made in committee sessions, any remarks made on the Floor, and
since the House rules also provide in various aspects allowing
Members prerogatives and staff to communicate to the public, I
would have to get further amplification from the gentleman from
New York whether remarks made to. the public would be allowable.
It seems to me that if. his reading of his amendment is going to
be so narrow as to allow such remarks by Members,. I am not sure
what the amendment does. If the amendment is, as I have read it,
which is any disclosure, then it would contravene the speech or
debate clause because it would seem to. seek to apply a criminal
penalty for remarks made by Members in the course of legislative
debate.
The Supreme Court has addressed the question on a couple of oc-
casions as to whether or not there could be a narrow institutional.
waiver of the speech and debate. clause. The Court in the Brewster
decision raised the possibility that a narrowly crafted statute would
serve as an institutional waiver of the speech or debate clause and
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would permit criminalization or other penalty for legislative ac-
tions by Members.
In the Helstoski case, decided later, however, the Court held that
the bribery statute would not constitute such a narrowly drawn
statute to represent a waiver by the institution, and it seems to
myself, and I believe to most who have looked at the decision and
looked at the field, to foreclose the possibility that the House and
Senate could draw a statute which would serve to waive the privi-
lege.
So I would say that if it is the intention of the amendment to
apply to any communications or actions of Members which would
under current law be considered legislative, and those would be
communications which are part of the deliberative and communica-
tive process which constitutes the legislative process, the amend-
ment could not be-the criminal penalty could not be applied con-
sistent with the speech and debate clause.
AFFIRMATIVE DEFENSE
Mr. HYDE. May I ask a question of counsel?
Chairman FASCELL. Mr. Hyde.
Mr. HYDE. Thank you. Mr. Ross, but isn't that an affirmative de-
fense? That doesn't invalidate or render the amendment unconsti-
tutional. If a Congressman says something he shouldn't say and the
speech and debate clause protects him, he asserts that that is not
true.
Mr. Ross. I would disagree. The clause has not been read and ap-
plied by the courts to be an affirmative defense. The courts refer to
the speech or debate clause as jurisdictional. It takes away from
the jurisdiction of the courts--
Mr. HYDE. Insofar as that Member of Congress is concerned.
Mr. Ross. Insofar as a Member of Congress or any part of the leg-
islative entities, because it has also been extended to staff. But the
clause is the embodiment of the separation of powers doctrine and,
as such, is a proscription not only to the court but to all aspects of
our government as to how legislative actions by Members should be
treated.
It says, "shall not be questioned in any other place", and I don't
think it is a fair reading of the clause to limit it to an affirmative
defense in light of its jurisdictional nature and in light of the fact
that it is the, as I said, the embodiment of the separation of powers
doctrine.
Mr. HYDE. Then under the Intelligence Identities Protection Act,
are Members of Congress covered by that and staff and secretaries
and however you want to string that out? Are they covered by
that?
Mr. Ross. If a Member of Congress got up on the Floor of the
House and in the course of a speech which constituted part of the
legislative process, as speeches on the Floor do, revealed the identi-
ty of an agent or did anything else that would constitute a crime,
the penalty could not be the application of a criminal penalty, that
would contravene the speech and debate clause.
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That is not to say that a Member who transgresses a standard is
absent from penalty. The Constitution makes it clear that each
House is empowered -to ,punish its Members--
Mr. HYDE. In. other words, turn them over to the - Ethics Commit-
tee, right?
Mr. Ross. That is one possibility, yes.
Mr. HYDE. Thank you.
SPEECH AND DEBATE CLAUSE APPLICABLE TO AMENDMENT
Chairman FASCELL. Mr. Kostmayer.
Mr. KOSTMAYER. The speech and- debate. clause is applicable to
the Solomon amendment as well as to the Intelligence Identities
Protection Act of 1982, isn't it?
Mr. Ross. Yes. The only question I raised is that Mr. Solomon, in
his remarks, seemed to indicate that it was not intended to apply
to any legislative speech. As I read the amendment on paper, it
certainly seemed to me to apply to legislative actions. If it is inter-
preted not to apply, then the question is never. raised.
Mr. KOSTMAYER. Mr. Hyde indicated there was something faulty
about the Intelligence Identities Protection Act because Members
of Congress, if they are exercising their, rights under the speech
and debate clause, -would not be penalized. That applies not only to
the act just mentioned but the proposed amendment offered by Mr.
Solomon.
Mr. Ross. Or any other Act of Congress:
TYPE OF DISCLOSURES SUBJECT TO PENALTY UNDER AMENDMENT
Mr. KOSTMAYER. I would- like to ask the gentleman from New
York a question. During his, discussion, I understood the gentleman
from New York to say his amendment applied only to information
contained in the findings submitted by the. President to the Intelli-
gence Committee. It was my. understanding, and I think the under-
standing of the counsel, that the amendment applied to- any infor-
mation provided under Title V of the National Security Act to the
Intelligence Committee.
Now does it pertain to anything the Intelligence Committee gets
pursuant to Title V, which is a lot of information and quite broad,
or does it apply only to that information- which the- Intelligences
Committee receives which is in those findings?
Mr. SOLOMON. Will the gentleman yield?
If you read the third sentence, it says "access to classified infor-
mation produced as a, result of the provisions of this title." It deals
only with this information produced as a result of the findings
from the 48-hour notification. It doesn't deal with anything else..
Mr. KOSTMAYER. Mr. Chairman, I think that is fairly impor-
tant--
Chairman FASCELL. Not only that, but I am sorry to say it is in.
error on its face. It clearly amends Title V of the National Security
Act of 1947 and adds a whole new section.
Mr. KOSTMAYER. And I would hope the gentleman would amend
his amendment to make clear this is not intended.. to be applicable
to information provided to the Intelligence Committee pursuant to
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Title V but rather only that information contained in those find-
ings.
Chairman FASCELL. Mr. Weiss, do you have a question of coun-
sel?
ACCOUNTABILITY OF MEMBERS OF CONGRESS
Mr. WEISS. Thank you, Mr. Chairman.
I want to really clarify the issue, and maybe it is a restatement,
but I think it may be important. Are you telling us as counsel to
the House that regardless of what the executive branch of govern-
ment decides to classify as secret, or top secret, or restricted infor-
mation, any Member of this body may in the course of regular
speech and debate on the floor of the House or in appropriate com-
mittee, disclose and divulge that information in public session with-
out having criminal penalties apply or any other penalties as set
forth by either this proposed legislation or by the executive
branch?
Mr. Ross. There are two aspects to your question. Let me take
them in reverse order. In terms of whether or not a Member of
Congress could be subject to criminal penalties for disclosure of in-
formation in the course of either a Floor presentation or a commit-
tee session, that question was answered by the Supreme Court in
the Gravel case in which the Supreme Court held that Senator
Gravel could not be questioned and, therefore, could not be held ac-
countable, in a criminal sense, for his conduct, including the re-
lease of information at a committee session of the United States
Senate. Separate questions are raised as to disclosures or dissemi-
nations outside the Senate. -
LEGAL BASIS FOR DETERMINING CLASSIFICATION OF INFORMATION
As to the first part of your question, which raises a concern of
the classification system, I must start my answer by saying that
the classification system is not a creature of statute. The President
has issued an Executive order in his authority as the Chief of the
executive branch to classify and categorize certain information. In-
formation that the Congress receives or that a committee receives
once it is within the Congress is just as congressional as it is Exec-
utive and Congress could categorize it and treat it as it sees it.
It is not for the President, by issuance of an Executive Order, to
tell this committee that it must treat information in one way or
another. If this committee has received information by virtue of its
constitutional authority to conduct oversight or to make inquiries
in support of its legislative authority, then it is up to the commit-
tee and the House or the Congress to define how that information
will be treated and how it should be treated.
Chairman FASCELL. Mr. Solarz.
AMENDMENT APPLICABLE TO EXECUTIVE AND LEGISLATIVE BRANCHES
Mr. SOLARZ. Thank you, Mr. Chairman.
Mr. Ross, in the amendment before us it says, it applies to any
person otherwise having had authorized access to classified infor-
mation produced as a result of the provisions of this title. As you
interpret the amendment, does this mean that someone in the ex-
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ecutive branch who was informed about. a covert operation, let's
say it was under discussion with the administration before it was
submitted pursuant. to, this, legislation to the Intelligence Commit-
tees, if such a person in the executive branch divulged information
about the covert operation, would they be guilty of violating this
amendment, or does- this only apply to people who receive the, in-
formation produced as a result of the provisions of this title, pre-
sumaUii meaning-the Congress?
Mr. Ross. Let me make sure I understand your, question. Is the
question- whether the amendment--
Mr. SoLARz. Does this apply to members of the executive branch
or only to. Members of Congress and. their staffs who receive the
information as a result, of the provisions of the title?
Mr. Ross. As I read Mr. Solomon's amendment, it is any person,
executive branch or legislative branch, who has access to-the infor-
mation. And so it would not-Mr. Solomon's amendment would. not
be limited only to members of the legislative branch.
Mr. SOLOMON. And that is the intent of the amendment too.
VOTE- ON SOLOMON AMENDMENT
Chairman FASCELL. Anything further?
The question is on agreeing to the amendment. All those in favor
will say aye. All those opposed, no. The clerk will call the roll.
Mr:-BR.anY: Mi?: Fascell.'
Chairman- FASCELL. No:
Mr. BRADY. Mr. Hamilton.
Mr. HA-MILTON. No.
Mr. BRADY. Mr. Yatron.
Mr. YATRON. No.
Mr. BRADY. Mr. Solarz.
Mr. SoLARZ.. No.
Mr. BRADY. Mr: Bonker.
[No response.];
Mr. BRADY. Mr. Studds. - <
[No response;]
Mr. BRADY. Mr: Mica. -
[No response.]::
Mr. BRADY. Mr. Wolpe.
Mr. WoLPE. No.
Mr. BRADY. Mr. Crockett.
Mr. CRoCKE'rT. No.
Mr. BRADY. Mr. Gejdensonn.
Mr. GEJDENSON. Pass.
Mr. BRADY. Mr. Dymally.
[No response.]
Mr. BRADY. Mr. Lantos.
[No response.]
Mr. BRADY. Mr. Kostmayer. -
[No- response.].
Mr. BRADY. Mr. Torricelli.
Mr. TORRICELLL. No.
Mr. BRADY. Mr. Smith.
[No response.]:
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Mr. BRADY. Mr. Berman.
[No response.]
Mr. BRADY. Mr. Levine.
[No response.]
Mr. BRADY. Mr. Feighan.
[No response.] .1 1
Mr. BRADY. Mr. Weiss.
Mr. WEISS. No.
Mr. BRADY. Mr. Ackerman.
[No response.]
Mr. BRADY. Mr. Udall.
[No response.]
Mr. BRADY. Mr. Atkins.
Mr. ATKINS. No.
Mr. BRADY. Mr. Clarke.
.;.[No response.]
Mr. BRADY. Mr. Fuster.
[No response.]
Mr. BRADY. Mr. Bilbray.
Mr. BILBRAY. No.
Mr. BRADY. Mr. Owens.
Mr. OwENS. No.
Mr. BRADY. Mr. Sunia.
[No response.]
Mr. BRADY. Mr. Broomfield.
Mr. BROOMFIELD. Aye.
Mr. BRADY. Mr. Gilman.
Mr. GILMAN. Aye.
Mr. BRADY. Mr. Lagomarsino.
Mr. LAGOMARSINO. Aye.
Mr. BRADY. Mr. Leach.
[No response.]
Mr. BRADY. Mr. Roth.
[No response.]
Mr. BRADY. Ms. Snowe.
Ms. SNOWE. Aye.
Mr. BRADY. Mr. Hyde.
Mr. HYDE. Aye.
Mr. BRADY. Mr. Solomon.
Mr. SOLOMON. Aye.
Mr. BRADY. Mr. Bereuter.
Mr. BEREUTER. Aye.
Mr. BRADY. Mr. Dornan.
Mr. DORNAN. Aye.
Mr. BRADY. Mr. Smith.
Mr. CHRISTOPHER SMITH. Aye.
Mr. BRADY. Mr. Mack.
[No response.]
Mr. BRADY. Mr. DeWine.
Mr. DEWINE. Aye.
Mr. BRADY. Mr. Burton.
[No response.]
Mr. BRADY. Mrs. Meyers.
Mrs. MEYERS. Aye.
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1 195-
Mr. BRADY. Mr. Miller.
[No response:]
Mr. BRADY. Mr. Lukens.
[No response:].
Mr. BRADY. Mr. Blaz.
[No response.] -
Mr. KosTMAYER:- Mr; Chairman, how am= I recorded?
-
Mr. BRADY. Mr. Kostmayer did not vote.
Mr..KosTmAYER::11.would be.recorded--- as.votingno:
Mr. GEJDENSON I. wsul : Ii -t to ao-
Mr. BRADY: On-this vote, .:k1 ayes; 13 nays;
Chairman.FAscxLL. So the.amendnent isnot. agreed to:.
VOTE ON'-R: 3822`. ,
The, questiow-is now on the adoption: of the' bill,. All those, in
favor, signify by saying` aye. All those- opposed., no. The ayes have
it; and the bell-isl. agreed to.,
A roll=.call is demanded:. The': chief -of staff will: call. the roll.
Mr..-BDY: Mr-Fasc?ell..
Chairman- FASSCELL.. Aye;
Mr. BRADY: Mr.', Hamilton.
Mr. HAM1LToN Aye.
Mr. BRADY: Mr. Yatron.
Mr. YATRON Aye'
Mr. BRADY. Mr. Solarz.
Mr. SOLARZ. Aye..
Mr. BRADY. Mr: -Bonker.
Chairman FASCELL. Aye, by proxy.
Mr. BRADY. Mr. Studds-
Chairman FAscELL. Aye;. by proxy.
Mr. BRADY. Mr. Mica.
[No response.]
Mr. BRADY. Mr. Wolpe.
Mr. WOLPE. Aye.
Mr. BRADY. Mr. Crockett.
[No response.]
Mr. BRADY. Mr. Gejdenson.
Mr. GEJDENSON. Aye.
Mr. BRADY. Mr. Dymally.
Chairman FASCELL. Aye, by proxy.
Mr. BRADY. Mr. Lantos.
[No response.]
Mr. BRADY. Mr. Kostmayer. .
[No response.]
Mr. BRADY. Mr. Torricelli.
Mr. TORRICELLI. Aye.
Mr. BRADY. Mr. Smith.,
Chairman FASCELL. Aye, by proxy.
Mr. BRADY. Mr. Berman.
Mr. BERMAN. Aye.
Mr. BRADY. Mr. Levine.
Chairman FASCELL. Aye, by proxy.
Mr. BRADY. Mr. Feighan.
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1 196
Mr. FEIGHAN. Aye.
Mr. BRADY. Mr. Weiss.
Mr. WEISS. Aye.
Mr. BRADY. Mr. Ackerman.
Chairman FASCELL. Aye, by proxy.
Mr. BRADY. Mr. Udall.
[No response.]
Mr. BRADY. Mr. Atkins.
Mr. ATKINS. Aye.
Mr. BRADY. Mr. Clarke.
Chairman FASCELL. Aye, by proxy.
Mr. BRADY. Mr. Fuster.
[No response.]
Mr. BRADY. Mr. Bilbray.
Mr. BILBRAY. Aye.
Mr. BRADY. Mr. Owens.
Mr. OWENS. Aye.
Mr. BRADY. Mr. Sunia.
[No response.]
Mr. BRADY. Mr. Broomfield.
Mr. BROOMFIELD: No.
Mr. BRADY. Mr. Gilman.
Mr. GILMAN. No.
Mr. BRADY. Mr. Lagomarsino.
Mr. LAGOMARSINO. No.
Mr. BRADY. Mr. Leach.
Mr. LEACH. No.
Mr. BRADY. Mr. Roth.
Mr. BROOMFIELD. No, by proxy.
Mr. BRADY. Ms. Snowe.
MS. SNOWE. Aye.
Mr. BRADY. Mr. Hyde.
Mr. HYDE. No.
Mr. BRADY. Mr. Solomon.
Mr. SOLOMON. No.
Mr. BRADY. Mr. Bereuter.
Mr. BEREUTER. No.
Mr. BRADY. Mr. Dornan.
Mr. DORNAN. No.
Mr. BRADY. Mr. Smith.
Mr. CHRISTOPHER SMITH. No.
Mr. BRADY. Mr. Mack.
Mr. BROOMFIELD. No, by proxy.
Mr. BRADY. Mr. DeWine.
Mr. DEWINE. No.
Mr. BRADY. Mr. Burton.
Mr. BROOMFIELD. No, by proxy.
Mr. BRADY. Mrs. Meyers.
Mrs. MEYERS. No.
Mr. BRADY. Mr. Miller.
Mr. BROOMFIELD. No, by proxy.
Mr. BRADY. Mr. Lukens.
Mr. BROOMFIELD. No, by proxy.
Mr. BRADY. Mr. Blaz.
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1 197
Mr. BROOMFIELD.; No, by proxy.
Mr. BRADY. Mr. Kostmayer .votes. aye..
On this vote, 22 ayes and 17 nays:
Chairman FASCELL. Mr. Berman.
Mr. BERMAN. Mr. Chairman, I would just ask the committee
report make reference to and -incorporate the colloquy engaged in
between you and -Mr. Stokes on the arms export legislation, H.R.
3651, that passed the.-House unanimously several weeks ago with
respect. to arms transfers as. part of intelligence Operations . being
part of the notification to the Intelligence Committees.
Chairman FASCELL. The bill is ordered favorably reported. The
gentleman from California,,. if you will submit your language- for
the report. The minority -has 3 days in which to file their views.
Mr. BERMAN. Thank you, Mr. Chairman.
Chairman FASCELL. All right. The committee stands adjourned
subject to the call of the Chair.
[Whereupon, at 12:05 p.m., the committee was adjourned subject
to the call of the Chair.]
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APPENDIX 1
1a1.& I)OU at 3&tPVeftftFYblhd'
ilhp(-r--. ac 20515-018
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IAI.r1l G1Ol ~MIM~ .~.
The Honorable Dante B. Fascell
Chairman
Committee on Foreign Affairs
Washington, DC 20515
I am writing to you because of my deep concern about the
proposed leak amendment' to the covert action oversight.bill (M.R.
3822).
The adoption of a statute criminalizing the leaking of
information haslong been a"goal of the'current Administration -?
one that Congress-has long rejected. Yet, the proposed :amendment
would establish a leak offense.
It is ironic that the amendment is offered to the oversight
bill, for it would- seriously jeopardize the oversight process.
Under the amendment, information received by 'Congress would be
subject to criminal provisions of a type not applied to any
other . classified information. Members of Congress who received
classified information in the course of their oversight duties
would be subject to criminal provisions not applicable to
executive branch officials.
Moreover, the amendment is not limited .to".information
relevant to covert actions, the subject' of the bill to which it
is being offered. Rather, it applies to,all information received
by Congress pursuant to the oversight title of the National
security ?Act.
The amendment seems-to concede the argument that Congress
is the primary source of leaks of classified-information, when
we know that just.the opposite is true.
The-provision would be ripe forabuse by the Executive
Branch since the Executive Branch-would decide which leaks to
overlook and which to prosecute. The provision would even'
inhibit Members "from discussing information otherwise. in the
public domain if the information" was still technically classified
and had been provided to Congress.
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The Honorable Dante B. Fascell
June 13, 1988
Page 2
The amendment also has serious implications for the ongoing
dispute over the scope of the Speech and Debate Clause of the
Constitution.
Although there is an unfairness issue -- and a separation of
powersriminalissue
penalties, making I do not Members
think it Congress
would s cure uniquely ly subject to
extend it to Executive Branch officials. Indeed, such ravchangeto
would only compound the difficulties posed by the amendment,
turning it into a general leak statute.
Because of these serious problems and because Members and
their staffs are already subject to the full force of the
espionage laws, I urge you to work against this amendment. I
would be happy to do whatever I can to assist you.
With kindest regards.
Don Edwards
Chairman
Subcommittee on civil and
Constitutional Rights
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~.-.
Offi-
Honorable Dante B. Fascell
Chairman
committee on Foreign Affairs
U.S. House-of Representatives-,
Washington, D.C. 20515
This letter presents the views.of,the Department of Justice
on R.R. 3&22,,.a bill relating to the: system of congressional
oversight of intelligence activities. The-Department of Justice
opposes enactment of this legislation because-we believe it would
unconstitutionally intrude on the President's authority to
conduct the foreign relations, of the United States.
H.R. 3822 would repeal the Hughes-Ryan Amendment, and
substantially revise the congressional reporting requirements of
the National Security Act. Besides appearing, to broaden the
congressional notification requirements, section,3 of H.. R. 3822
would delete from: section.501(a) of the NationalSecurity Act the:
present expresssacknowledgment.that the. Act imposes reporting
requirements on the President.only insofar asrthe requirements
are consistent with his authorities and : duties under the United
States Constitution.! It-would also delete the Act's provision
! Section 501(a) presently provides (emphasis-added):
To the extent consistent with..all applicable
authorities and duties, including those conferred bv.
th Constitution..uPOn:theexecutive and legislative
branches- of the Government;,:. and..to the extent
consistent with due regard. for. the=protection from
unauthorized disclosure of classified- information and'
information relating-to intelligence sources and
methods, thelDirector of Central Intelligence^andt^the,
heads of al-l departments, agencies, and other entities
of the United:States involved'in intelligence
activities shall --
(1) keep the Select Committee on Intelligence of
(-continued...)
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acknowledging the President's independent constitutional
authority, namely section 501(b), which provides for presidential
discretion in deferring notice to Congress concerning excep-
tionally sensitive intelligence activities.2 In place of the
current Act's provision acknowledging the President's authority
to provide "timely notice" in such sensitive situations, section
3 of H.R. 3822 would purport to require that such notice be given
within 48 hours after the initiation of such operations.
In keeping with the long-standing view of Presidents of
every Administration that has considered this issue, the
Department believes that these provisions of H.R. 3822 are
unconstitutional. As you know, these same issues were the
subject of thorough debate and extensive negotiation in 1980,
when Congress was considering proposals for intelligence over-
sight legislation. It was the position of the Administration
l(...continued)
the Senate and the Permanent Select Committee on
Intelligence of the House of Representatives .
fully and currently informed of all intelligence
activities which are the responsibility of, are engaged-
in by, or are carried out for or on behalf of, any
department, agency, or entity of the United States,
including any significant anticipated intelligence
activity, except that (A) the foregoing provision shall'
not require approval of the intelligence committees as
a condition precedent to the initiation of any such
anticipated intelligence activity, and (B) if the
President determines it is essential to limit prior
notice to meet extraordinary circumstances affecting
vital interests of the United States, 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
the majority and minority leaders of the Senate. -
Needless to say, deleting the underscored language would be only
symbolic and could not-alter the constitutional rights or duties
of either branch.
2 Section 501(b) currently provides (emphasis added):
The President shall fully inform the intelligence
committees in a timely fashion of intelligence
operations in foreign countries, other than activities
intended solely for obtaining necessary intelligence,
for which prior notice was not given under subsection
(a) of this section and shall provide a statement of
the reasons for not giving prior notice.
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then, as it is of this Administration-now, that there maybe
exceptional occasions on which the Presidents exclusive and
inalienable constitutional duties in the area of foreign-affairs-
would preclude him from giving prior notice of very sensitive
intelligence-related operations.
This Administration,. like: prior Administrations, is eager
to work with Congress in devising:?arrangements to: satisfy: the.
legitimate interests. in. legislative, oversight. But the.
executive. branch'. in: 1980 recognized' that there. is- a. point beyond
which the Constitution simplywould':not permit.. congressional.
encumbering of the President's ability' to.init'iate,, dlrect';,and
control. the sensitive-national - security activities at issue here...
Testifying before the Senate Select.Comaittee.in 1980, then CIA
Director Stansfield: Turner emphattically pointed out that the
prior notification. then being-considered "wouldamount-to
excessive intrusion by the-Congress.into?the'President''s exercise,
of his powers under the Constitution." See National - ntelliaence
Act of 1980? Hearings before, the ?S'ena 'e Select Comaittee._on,
Intelligence? 96th Cong., 2d?Sess: 17 (1980).
The Constitution confers on the-President the?authority'andi
duty to conduct the-. foreign, relations of the-United States:..
Covert intelligence-related operations. in foreign-. countries, are,
among. the most sitive and vital. aspects" of this duty,. and., they
lie at the very core; of. the- Pr'.esidant"s-Article.I.I responsibili-
ties. In this letter the. Department. will not seek to detail all,
the authorities and'precedents relevant to-our conclusion'that an,
absolute prior notice requirement of the kind proposed in H;R..
3822 would be unconstitutional. In'summary, however, the.
Department believes that the. Constitution, as. confirmed' by
historical.practice.;andtclear statements of the United States.
Supreme Court, leaves the conduct. of foreign, relations,-which-
must must include foreign intelligence operations, to the President
except insofar as the Constitution gives-specific tasks to the
Congress.
The principal source,for the'President'sswide-and. inherent
discretion to act for the nation in?foreign affairs is section 1
of article II of the Constitution wherein it is stated:- 'The-
executive Power shall be vested in a President of the United
States of America:.' The clause has long been held to confer on
the President plenary authority to represent the United States
and to pursue its interests outside the borders of the country,
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. The President's executive power includes all the
discretion traditionally available to any sovereign in its
external relations, except insofar as the Constitution places
that discretion in another branch of the government.
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Before the Constitution was ratified, Alexander Hamilton
explained in The Federalist why the President's executive power
would include the conduct of foreign policy: "The essence of the
legislative authority is to enact laws, or, in other words to
prescribe rules for the regulation of the society; while the
execution of the laws and the employment of the common strength,
either for this purpose or for the common defense, seem to
comprise all the functions of the executive magistrate." See The
Federalist No. 75, at 450 (A. Hamilton) (C. Rossiter ed. 1961).
By recognizing this fundamental distinction between "prescribing
rules for the regulation of the society" and "employing the
common strength for the common defense" the Framers made clear
that the Constitution gave to Congress only those powers in the
area of foreign affairs that directly involve the exercise of
legal authority over American citizens. As to other matters in
which the nation acts as a sovereign entity in relation to
outsiders, the Constitution delegates the necessary authority to
the President in the form of the "executive Power."
The authority of the President to conduct foreign relations
was first asserted by George Washington and acknowledged by the
First Congress. Without consulting Congress, President
Washington determined that the United States would remain neutral
in the war between France and Great Britain. The Supreme Court
and Congress, too, have recognized the President's broad
discretion to act on his own initiative in the field of foreign
affairs. In the leading case, United States v. Curtiss-Wright
Export Coro 299 U.S. 304 (1936), the Court drew a sharp
distinction between the President's relatively 'limited inherent
powers to act in the domestic sphere and his far-reaching
discretion to act on his own authority in managing the external
relations of the country. The Supreme Court emphatically
declared that this discretion derives from the Constitution
itself, stating that "the President [is] the sole organ of the
federal government in the field of international relations -- a
power which does not require as a basis for its exercise an act
of Congress." 299 U.S. at 319-320 (emphasis added). Moreover, as
the Curtiss-Wright Court noted, the Senate Committee on Foreign
Relations acknowledged this principle at an early date in our
history, stating that "the President is the constitutional
representative of the United States with regard to foreign
nations." The committee also noted "that (the President's
constitutional] responsibility is the surest pledge for the
faithful discharge of his duty" and the Committee believed that
"interference of the Senate in the direction of foreign negotia-
tions [is] calculated to diminish that responsibility and
thereby to impair the best security for the national safety."
299 U.S. at 319 (quoting U.S. Senate, Reports, Committee on
Foreign Relations, vol. 8, p. 24 (Feb. 15, 1816)).
Curtiss-Wright thus confirms the President's inherent Article II
authority to engage in a wide range of extraterritorial foreign
policy initiatives, including intelligence activities -- an
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authority that derives from the Constitution, not from the
passage of specific authorizing legislation.
Despite this wide-ranging authority, Presidents have been
careful to consult regularly with Congress to seek support and
counsel in matters of foreign affairs. Moreover, we recognize
that the President's authority over foreign policy, precisely
because its nature requires that it be wide and relatively
unconfined by preexisting constraints, is inevitably somewhat
ill-defined at the margins. Whatever questions may arise at the
outer reaches of his power, however, the conduct of secret
negotiations and intelligence operations lies at the very heart
of the President's executive power. The Supreme Court's
Curtiss-Wright decision itself notes the President's exclusive
power to negotiate on behalf of the United States. The Supreme
Court has also, and more recently, emphasized that this core
presidential function is by no means limited to matters directly
involving treaties. In United States v. Nixon, 418 U.S. 683
(1974), the Court invoked the basic Curtiss-Wright distinction
between the domestic and international context to explain its
rejection of President Nixon's claim of an absolute privilege of
confidentiality for all communications between him and his
advisors. While rejecting this sweeping and undifferentiated
claim of executive privilege as'applied to communications
involving domestic affairs, the Court repeatedly and emphatically
stressed that military or diplomatic secrets are in a different
category: such secrets are intimately linked to the President's
Article II duties, where the "courts have traditionally-shown the
utmost deference to Presidential responsibilities." 418 U.S. at
710 (emphasis added).
We are unaware of any provision of the Constitution that
affirmatively authorizes Congress to have the role provided in
H.R. 3822. Congress' implied authority to oversee the activities
of executive branch agencies is grounded on Congress' need for
information to consider and enact needful and appropriate
legislation. Congress in the performance of this legislative
function, however, does not require detailed knowledge of
virtually all intelligence activities particularly prior to
initiation. Oversight of ongoing operations has the potential to
interfere with the ability of the President to discharge the
duties imposed on him by the Constitution. Accordingly, the
President must retain his constitutional discretion to decide
whether prior notice, in certain exceptional circumstances, is
not appropriate.
Since the current legislation was adopted in 1980, of
course, the President has provided prior notice of covert
operations in virtually every case. Moreover, in acting to
implement the recommendations of the Tower Board, the President
recently reaffirmed his commitment to the current statutory
scheme of notification. See the text of National Security
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Decision.. Directive No. 266, which accompanied the President's
message ta-Congress,of.March-31,.1987.
There are two other provisions of.M..R. 3822 which-raise~-
similar constitutional-problems,:, Proposed: Section, 502-would
require that intelligence,agencies;disclose, to,Congress?whatever;.
information' concerning intel-.l.igence; activities:,- other, than,
Rspecial activities,.?=that Congress deems;. necessary, tto, fulfill
its,: responsibilities-., Prbposed.Sectionr503 has, a similar,
provision-requir.'ing the:: Executive, branch. to disclosev at We CRlle. Nloraaut D lot been and lbya. OI the periodltte Atherton tiPolitics. rely The
st ranted ludamea g error add Rattntir. then ham been several Mown 11 the dssgs rated s, ems It. readership
Iran ed Political dlaaeo. 1L wee
psIfor OVUI- L of 55ldee ape ? alfht Committees. Those mho dOthe po . to inform W a -de, law DOB of sHHIh In.
Itpta Nolio le 15. by ldml s osm fa s themes. odU dut a en .sly d lee wen
r you ever leaked
be ji .nnmer a mimal Deered quL she Mo
ed
ged sues mlttees' rewOOrrOpparadefennUY depeM upon INOwpauon to to the thenevs, media!" Over 9110 aculd
It
kept
emet es t
naaeran[D, poasro. ite.
dames-how many times ate fnaansfee ap taamt nest.). In the msteee stone Se1M - ewaston or one res
peaches to difficult totelte Dolfs, eeo*fema Cammitfens' flop! moon on the fesn?Contea tutu on the leak Qum on were considered
meted oe not even considered betting Off a,, the minority noon devoted a clap m deamnte, thou they were published early
the, suteess depends seas It semi then ter W the need to each )raga.. it pomted wed aepantel7. In an August 1097 article en.
proWble COWd not be sWafalned7 tilled ?'lsaa City."" Mom than one in four
of amWlty lames. as W Its, a?'aanlMton Tma Dec. 17. Ian. ?"'?. the Haa an are
doed to
dearalant .dap r Veto o W Wotan I- , -Canute" Raider, O~armL --a ar :' Amerlaa abase
pratm OtoureM a arWtpeesd Wilma of Ve[e om Ceavn.Anron Rave: Wudus-
Deroe d not ed that the iealflaflee mPSL nee, l7. Inc. ate[ . M a, psn W-- O esmdad
beaeeh CO elfW: Ira be cte c This Daeep ' WObum Colby. "HmwnoM d. Z and acme aft s, mmauml a green
Dail Ito s V add mad noecuuve 0eahrll ? DanM" Getlon. "moil amp am' InatemHMReZ Ropes Paecad, [a -Ate otter Alan Multi OI lM Wit
--U.. . with IntedlaeOtt Oeenlaot tool. Wutputgtao list, Cm'. ft. tNt. AIL *I- awe IlHawar' Raper,natd Amrn?
Remtlmu
Thera A afm11Y at[ltoae U harbored be fbmla rep,. tear. oo. le-It. m
Rea Ira el in, Comavaroue Commands Inca. ape Mail -- 1 -I- game ails le onle nt
sales Intelllgcnce Eervlges type am. eases M! IrwnCOnlm Allap" I W Wlmaon llC^ Ica 6m,e1 .1 Hlil -H- eIa meOaeen of ilk mpp
OPD.aPoil. pea al3 .t, dote Cgep any s,6 i4Yera emOaeaae
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E 962 CONGRESSIONAL RECORD - Essrrfsioru of R,,,rks .March 31. 1988
persons-over 2s Z-..conceded at some time 1.1 nod. Congress is now propos- of conduct to curtail these abuses. At
Itaving shared is secret with the media. Cap- , Inate It 1xoan0 the detim[ion of its an P-en[. however.his -cm unllkel Y. As
lief Hill staffers. sporting a J1%. ratlnI, were .'need to know." In what Secretary Carlucci the mebta appears more and more method
higher than average. But they were pikers has aptly laoeled a mugutded effort to ward "' ait ' r,O.rttn. and adv.-
compared to the "polltigun" category, alone close every conceivable loophole" despite cagy loumaiism.the demand for leaks ac-
s[ the emnOcle of the char[. In which 62% rnultinR Oamageto VS. forngn policy, the peso to be rising i tandem with the
of 16 respondents admitted to having leaked Intelligence Committees now are promoting oggle.'V, can also expect a turthrescau
Information. This contrasted with 23% In legislation reoulrmn that they almost Imme- disputes Over release of classelsd ,on Oi the "Federal employees to en Media in- LeIY r information on v!N single sate Bite chotoarppny O
formtt on ourcew tended to have higher undertaken. Wee should in- ~ve cats and rnstalititana becomes atall-
aalarYandseducatlonal levels. Contrary to stead be confident that the political fallout able the media.
reporter Be,
e -
eat accusations. conmrvntive were from the IrnrConses affair has provide d In the 19'10'5. invn[tga[i
f0 ndrIn leap less than liberals and model- far greaser assurance than ever before that our Hersh reportedly toI old is Net, War
le. And. In dellnious irony, leakers named notification will not he withheld Ieconoran- College seminar that li a reporter his lob
loumalsu as the group they touted the ly unless them m very good reason. Indeed. a tsto break into the Pentagon if he could
feat- ldmonl respondents as a whole. "poll. the a ecutive brunch doubtless in the and eal all he classified do u he
tlblvu" had a alight edge over JOUmalas in ILL? will take pains to share Critics Infer- could. and that their job was, to stop atop him."
petition for this award.) lion and attendant politics risks with We have to emure edia rem that the Gov.
onand Inc media where remain national s O :n eemuenn.
The anpauon has been avowed to deterlo- Congress. tallyeminentthe time side w
ease an far that the task of changing this 11 the if= thing Congress should do is in
permfsslve culture Is now monuments. Sue- vote down inn mandatory early notification 1,Y a concerned. But the media to bewaring
teen will come very slowly indeed. and will legislation and the second is to forth a cpm- more sachet t [ r ear aggressive with
resat else from a persistent and aggressive pact Joint Oversight Committee. the third recard to acaor ublication of classt-
ao._t agrees a broad front. is both Can. must be to study carefully our options for tied Information ns a is nT h cOll
she ec
aeon and the eseeutlve branch. action and leeslauon . Id, percent future live resourc ~~ csseemism
One option is stricter aemntY procedure Government leaks tad' to "Investigate and stigmatize m uncoru tpress e
ge3tion hat If press miss[ be held
and increased comcartmenulvati.d. Can. - Punish [hem when [hey scentt any lie accountable
11,01 Hm u very quiet to plain this is the' The law on punmhin"[hose diselostng itttei i it it... not police
preferred solution for the executive branch classified Information is Irequenllc an ellee- If more ,lectively.
problems. thereby avoiding the need to tlve barter to sumessnul toe ts prosecution, ape- - eson i grapple with these rootems.
grapple with difficult civil and pros liter- rfloallY. it Is extremely hard to prove in . m messy. and cor tically volatile problems
tie tissea But Congress m loathe to apply leak e. es was the law aeneeolly requiem, same people torsi that the damage we have
this option to its own operations Sc cor~ll- that Iheee as "intent or reason to believe suffered is overhae. it and that no matter
dating Its oversight Into one Joint commit- that the lnlormsuon is to be used to [he how air may be. not eneiY tarn-
rturres.
tee. However, consolidation and Ion-' into" of the United States or [o the ad van- Deang e h Dress sumak lib tberles or eGo .--,
mMtalirattpts is a far m e Drommmg Cage of any foreign nation:' ? dnat pe[eh a Bu[ 11 Coolness, re disdips our option for the congressional Intelligence Government prosecutors are faced with a canno el0e e ? e in 10 solvmg this Dco bem.
Cammtt[ees than for policy agencies Etter similar huedle when it mine, to comm~tmg wtu a urgeen n ency a
tive congressional ovemght doesn't rmufre joumaistt who reveal the identities of - I' I Intelligence Committee ,in 32 (plus 4 es- deeover Intelligence penoneL The law in, is dangerous world whereethe mergtn for
offlelal members and 55-plus Suff. More govlmme this kind of disclosure requires greet is fast dlndmarng.
over. additions staff. as well as 21 Senamra the Government to prove that auth an mdi?
nlld Congressmen s Ning, on the Defense victual engaged in "a pattern Of activities In-
Approprtations Subeommntees In With tended m identify and expose covert agents
Hoasm of Congress, also have apneas to ex- and with reason to believe that auedactlN-
teemete le wutemte. Altogether. no would Impair, or impede the fore/m In-
therelore. 67i Members W Congress are in telligence activities of the United States".
?
the "loop" for such information. In short. athoueh there are Inherent dif-
F or the policy agencem. w'ho already have fteuWe In apprehending a leaker. neither
cut back on access to classified matins. (or- Congress n the e e branch can
then reatnchons on the dtsseminatton of In- claim that v Rorous or competent attemen
formation may be helpful In same naval. But to Old m have been undertaken or that pn-
1f esmeartrnentalua[ton u not carefully an. ishment is swift and some.
plied. the additions advan[azea could be Given the difficulty of identifying those
limited and the drawbar. serious. Already who have leaked nlaaattied maters. we
there s concern that the most aensruve in- should also face the Question of whether.
telligeare R only to top poliel'ntakeea tinder what clminmtannea and haw w
who are too busy to read or act upon it. An- should take action asauut the known party
at n no ore supposed to mute sense of to the deed-the reporter and media Outlet
collected mtellleence cannot do their job If In ouencom Although the media sometime
pertinent Information Is withheld from have eaeeiaed eesrant in them Ismea bete
them. Flnialted In[eineenre maraca In again the culture his become so peemlWVe
turn. are leas useful U they are not alts- [bat potential damage to U.S. Intettfsertce
used W those with an interear in the Sub- collection and foreign Dodgy often eeeefne
lent. If poliq' action is cpnUdered oe at. abort ahrat when acts. and edlion are
tempted. the circle of knowledgeable paMea deeldllis whether or not to publletl Msee.
lhevlably widens so that come people will nmr, like the leaten themselves. JmlmaBlta
become evolved who glib' disagree with the purporling to welgh naemfiy the national
pcoeosed action or who for some other seeurlty lmellntioa of suers wrltmta often
wilt be Inclined to leak: and there dLplay ntarloiltiy Dose liidgme[tt In thl.
w111 be tin many people Int'Olved at this regard. Yet they contend that they alone
stage to have mum. hope of /coding the should he the lodge and. for Wranes. hold
(esker. Even the OUie Norm ieanlCOntra in melt' hands agents' fives and this future,
operation. compaetmentallted - It wsa. effepuvemea of mtetlgenne colleeUn Sra-
eventuallY Involved great numbem'of pcople toms coning blUloa of gallon of tagpayer
within and outside the Government. In fact. coney. I hottest it Y beyond dISpute. nmre--
the Iran overate was indeed leaked rather over, that the emum of "the public's right
early in a attle-noticed Jack Andeesnn to know." used as a defense In them cams, Is
column. by mine still unamwrt peemn a rationale that would be rejected by the
Future use of esublisned cover nation and vat maiorlty of the nubile Itself.
policy deliberation - proeesurea insisted IdaalY. the peen should awn among
intent by the Tower Review Board and in themaefvel an some eapligt Or trinIftit Code
conaneavow reports on the lean/Clan
affalr, will ensure that ? smable number of
People away. are involved. ? ata roar n 11mmwwse and ceiuwnmpt Of one
But niter than accept for itself the medl? I? poled maw Cove. tettm rd.. .
elm that -it has mmetimeS prOpsald for the watl.tm 6n505. wet ar INr 1,m OB.C Cris
Tm N, rtcriert.er.
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322
Chapter 13
The Need To Patch Leaks
Throughout the majority report, much is made of the
Administration's concern for secrecy. That concern is
portrayed almost exclusively, if not exclusively, as the
desire of some lawbreakers to cover the tracks of
their misdeeds. We agree that the National Security
Council staff. under Admiral Poindexter, let its con-
cern over secrecy go too far. We should not be so
deceived by self-righteousness, however. that we dis-
miss the Admiral's concern as if it had no serious
basis. Our national security, like it or not, does
depend on many occasions on our ability to protect
secrets. It is easy to dismiss the specific Iran arms
sales decisions about executive branch compartmenta-
lization. and about withholding information from
Congress for almost a year, as having been excessive.
Everyone on these Committees would agree with that
conclusion. But unless we can understand the real
problems that led the NSC staff to its decision. future
Administrations will once again be faced with an un-
palatable choice between excessive secrecy, risking
disclosure or foregoing what might be a worthwhile
operation.
Time after time over the past several years, ex-
tremely sensitive classified information has been revealed in the media. Predictably, both Congress and'
the Administration have blamed each other. In fact.
both are culpable. It is important for these Commit-
tees to recognize this truth forthrightly. As Secretary
Shultz said, quoting Bryce Harlow, "trust is the coin
of the realm." i But trust has to be mutual. Some
people on these Committees seem towant to bring
criminal prosecutions against former Administration
officials for not speaking candidly to Congress. it is
true that the business of government requires the Ad-
ministration to be considered trustworthy by Con-
gress. But so too must Congress prove itself trustwor.
thy to the Administration.
We do not mean, by our focus on congressional
leaks, to suggest that we turn our eyes from the same
problem in the executive branch. Executive branch
leaks are every bit as serious as legislative branch
ones. But as long as there is a consensus on this point,
we do not feel a need to dwell on it here. At the end
of this chapter, we will recommend legislation to help
address the issue of executive branch leaks al ong with
There is much less consensus in Congress. however.
about leaks from the legislative branch. Those prob-
lems are real. As Representative Hyde wrote in a
recent article. the fact that the executive branch leaks
more, does little to get Congress off the hook.
Proven Congressional transgressions admittedly
are relatively rare. but so are proven executive-
branch leaks. In truth. only a handful of leaks
ever have been definitively traced to their source.
so lack of proof establishes nothing. A partial
Senate Intelligence Committee study often
quoted by Mr. Beilenson reportedly found that
journalists referenced congressional sources only
8-9 percent of the time, but cited Reagan Admin-
istration officials 66 percent of the time. Report-
ers may not be entirely candid about their
sources. But generously assuming that Congress
has 2.500 people with clearances as opposed to
2.2 million in the executive branch and the mili-
tary, reliance on the Senate study forces us to
conclude that Congress maintains just over 0.1
percent the number of executive branch clear-
ances. but is responsible for 8-9 percent of the
leaks on national security issues. Specifically. on
average, a cleared person in Congress is 60 times
more likely than his counterparts to engage in
unauthorized disclosures.'
We believe that these problems-rather than a desire
to cover up a supposed lawlessness whose existence
we do not concede-contributed significantly to the
Administration's posture in 1985-86.
Protecting Secrecy in the Early
Congress
To put the issue in perspective, it is worthwhile to
consider how the country's Founders dealt with the
problem. Those hardheaded realists understood that
breaches of security during that perilous revolution.
ary period could mean the difference between life and
death. Consequently, only five members of the
Second Continental Congress sat on the Committee of
Secret Correspondence, the foreign inteniiemw. Ai--
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torate that was mentioned in our earlier historical party in Congress-to decide when or how it will be
chapter. made public.
The Continental Congress was especially careful
about protecting sources and methods. For example.
the names of those employed by the Secret Corre-
spondence Committee were kept secret. as were the
names of those with whom it corresponded. Even
then, there was concern about Congress keeping a
secret. As a result, when the Committee learned that
France would covertly supply arms, munitions and
money to the revolution. Ben Franklin and another
Committee member. Robert Morris. stated: "We agree
in opinion that it is our indispensable duty to keep it a
secret, even from Congress. . We find. by fatal
experience, the Congress consists of too many mem-
bers to keep secrets.-
To underscore the importance of protecting sensi-
tive information, the Continental Congress on No-
vember 9. 1775. adopted the following oath of secre-
cy which should still be in effect today:
Resolved That every member of this Congress
considers himself under the ties of virtue. honour
and love of his country, not to divulge, directly
or indirectly, any matter or thing agitated or
debated in Congress before the same shall have
been determined, without the leave of the Con-
gress. nor any matter or thing determined in
Congress. which a majority of the Congress shall
order to be kept secret. And that if any member
shall violate this agreement, he shall be expelled
this Congress, and deemed an enemy to the liber-
ties of America. and liable to be treated as such.
and that every member signify his consent to this
agreement by signing the same.3
This oath was not taken lightly and no less a revo-
lutionary figure than Thomas Paine, the author of
"Common Sense," was fired as an employee of the
Continental Congress for disclosing information re-
garding France's covert assistance to the American
Revolution. Interestingly, Congress then resorted to
its own covert action and passed a blatantly false
resolution repudiating Paine's disclosure, Obviously,
the Founding Fathers realized that there are some
circumstances when a well-intentioned "noble lie." as
Plato put it, is a necessary alternative to the harsh
consequences of the truth. They also believed in pun-
ishing leakers, a practice their modern counterparts in
both the executive and legislative branches need to
emulate more consistently.
Let us move forward in history now, to the early
years- of the Constitution. President Washington
learned quickly that once information is shared with
Congress, it is up to Congress-often the opposition
-For an eartier disemaion of this committee, iodhding this quotr
don, i- wpm ch. 3. p. 470.
During the time the Federalists controlled the
House. they enforced a rule that excluded the
public during any debate concerning material -
sent to the House by the President "in confi-
dence." After the Republicans gained control.
they changed this rule to allow the majority to
vote for public debate on confidential communi-
cations on an ad hoc basis. Soon thereafter, the
House voted to lift an injunction of secrecy they
had placed on some letters sent by the President
"in confidence." A similar rebellion of sorts took
place in the Senate after the Jay Treaty was
conditionally ratified. The President wanted the
treaty kept secret until all negotiations were com-
plete. The Senate voted. however, to rescind its
injunction of secrecy. although it continued to
enjoin Senators not to authorize or allow any
copy jto be made] of the said communication
Both Senators Pierce Butler of South
Carolina and Stevens T. Mason of Virginia smug-
gled copies out of the Senate chamber. apparent-
ly before the secrecy injunction was lifted, and
on the same day that the Government planned.to
make the treaty public, the Republican Aurora
beat it to the punch by printing an abstract of the
terms.a
Some things never change and as we celebrate our
constitution's bicentennial. Congress is still prone to
unauthorized and sometimes damaging disclosures.
The worst period in recent history was during the
1970s. when the legitimacy of the CIA and covert
operations were under attack. What follows are some
examples of alleged congressional leaks during that
period. Rather than rely on classified material, we
have chosen here to protect still secret information by
relying on accounts from secondary sources. The in-
clusion of this material is not. meant to confirm or
deny the veracity of the specific disclosures alleged.
We begin with a 1972 example from Arthur Maass'
book, Congress and the Common Good.
On April 25, 1972, Senator Mike Gravel (D. AK)
asked unanimous consent to insert in the Congres-
sional Record excerpts from a top-secret National
Security memorandum. The 500-page document
concerning policy options in the Vietnam War
had been prepared for Richard Nixon in 1969 by
the National Security Council staff under Henry-
A. Kissinger. The senator's normally routine re-
quest was blocked temporarily by minority -whip
Robert P. Griffin (R. MI). The Senate met on
May 2 and 4 in closed executive sessions to con-
sider Gravel's request, but no decision was
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reached. Then on May 9, Gravel, without ad-
vance notice, read into the Record. during debate
on the annual State Department authorization
bill. excerpts from the memorandum dealing with
proposals to mine North Vietnamese ports, an
action that had been announced by the President
on the previous day. Senator Griffin. who en-
tered the chamber during Gravel's statement.
criticized him for acting before the Senate had
disposed of the question. The Senator responded:
"I have an obligation to the American people
. to let the American people have the infor-
mation that he [Richard Nixon] has."
Congressman Ron V. Dellums (D.CA) then ob.
tained from Gravel a copy of the full document
which he placed in the Congressional Record on
May 11. by simply asking unanimous consent to
extend his remarks in the Record without giving
any hint of their contents."
Maass' book followed this example with two others
from the committees that investigated the CIA.
In January 1976, the House Intelligence Commit-
tee, under Chairman Otis G. Pike ID. NY) sought
to make public a report containing information
that the White House considered to be top secret.
The House intervened, voting 246 to 124 to block
the committee from releasing its report until the
President certified that it did not contain informa-
tion that would adversely affect the nation's intel-
ligence activities. Whereupon Daniel Schorr of
CBS News. having obtained a copy of the report
presumably from a House member or staffer.
gave it to the Village Voice, which published it.
thereby frustrating an overwhelming majority of
the House. Schorr was subsequently fired by
CBS and became a cult hero on the college lec-
ture circuit, commanding top fees for one-night
stands.
. . . The Senate Intelligence Committee chair-
man, Frank Church (D. ID), went to the full
Senate in November 1975 for approval of release
of the committee's report on CIA involvement in
assassination attempts against foreign leaders. The
report included secret information that the Presi-
dent believed should not be made public. The
Senate met in executive session, that is, secret
session, and when considerable opposition to re-
lease of the report developed, more opposition
than Church had anticipated, he and the Demo-
cratic majority adjourned the session without a
vote, and the committee released the report on its
own authority.7
It is clear that leaks during this period were often
motivated by an animus toward the CIA's mission in
general or as a way of killing individual operations.
The same Daniel Schorr who leaked the Pentagon
Papers to the Village Voice wrote about leaks in a 1985
Washingrort Post article. "The late Rep. Leo Rvan,"
Schorr wrote. "told me in 1975) that he would con-
done such a leak if it was the only way to block an ill
conceived operation." s In fact. wrote former Direc-
tor of Central Intelligence William Colby, "every
new project subjected to this procedure [informing
eight congressional committees] leaked. and the
'covert' part of CIA's covert action seemed almost
gone." "
The Still Leaky Congress During
the Reagan Years
By the late 1970s, the House and Senate had formed
intelligence committees, reducing the number of com-
mittees to which intelligence agencies had to report.
That clearly improved the situation, but it did not
cure all problems. Senator Joseph Biden. then a
member of the Select Committee on Intelligence.
sounded a bit like the late Leo Rvan in a 1986 Brit
Hume article from The New Republic. Biden reported-
ly said he had "twice threatened to go public with
covert action plans by the Reagan administration that
were harebrained." ti
In 1984, according to an article by Robert Cald-
well. CIA officials briefed the same Senate Select
Committee on Intelligence about information indicat-
ing that the Government of India was considering a
preemptive strike against Pakistan's nuclear facility.
When word of the briefing leaked, the operation was
halted. According to Caldwell, the leak showed India
that it had a security breach at a high level. The
breach was discovered and a French intelligence ring
was put out of business."
The Senate Select Committee on Intelligence was
one of the bodies to which the President would have
had to report the Iran arms sales. Of course the Presi-
dent could have limited the report to the committee
chairmen and ranking minority members as well as
the party leaders.of the House of Representatives and
Senate. The problem with this scenario is that some
senior members of the committee have been suspected
of leaking, as was discussed in the Committees' hear-
ings. 12 The House committee has also been the source
of some damaging disclosures. Bob Woodward's
book, Vei4 describes one incident that allegedly hap-
pened after members of the committee had sent a
secret letter to President Reagan to protest an oper-
ation about which Director Casey had just briefed
them.
Representative Clement J. Zablocki, the chair-
man of the House Foreign Affairs Committee and
a member of the House Intelligence Committee,
had reviewed the ... finding and the letter to
Reagan. The sixty-nine-year-old lawmaker leaked
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bers, tipping them that he had been a source for
Newsweek He was set straight, but the House
Intelligence Committee chairman, Edward
Boland, decided to take no action against Za-
blocki. since leaks were epidemic."
Complaints and investigations about subsequent inci-
dents involving the House committee so far remain at
the informal stage.
To complete this picture of the world about which
Poindexter had to make judgments: on November 3,
1985-in the weeks just before the November arms
transaction-a Washington Post article by Bob Wood-
ward broke a story about a "CIA Anti-Qadhafi Plan
Backed."" Director Casey responded to this article
with a blistering letter to the President about execu-
tive and legislative branch leaks. The Washingtonian
magazine. accurately in our view, linked the atmos-
phere in the White House immediately after this leak
to the decision not to notify Congress about the Iran
arms sale."
It may be that not all these reported details about
named Members of Congress are true. True or not,
they fit in with a real pattern. As such, they form part
of the background Director Casey and Admiral Poin-
topple Qaddafi ....
Newsweek reporters went back to House Foreign
Affairs Chairman Zablocki after the Libya plan
was denied. Zablocki went to House staff mem-
to Newsweek that the letter to Reagan about the street. and each end of Pennsylvania Avenue had
yet unnamed operation in Africa was a plan to good reasons to doubt the other.
the slightest misstep might get the hostages killed.
Certainly, such threats against the hostages lives have
been a part of the hostage takers' media events, and
Kilburn's death was real. Given the track record, no
one in Congress or the executive branch can afford to
be smug about these concerns. Trust is a two-way
Past leaks contributed to decisions that in turn led to
these investigations. The leaks did not stop, however.
when the committees started to work. The Commit-
tees began with every good intention. Recognizing
that it was dealing with highly sensitive information.
the leadership made a concerted effort to prevent
leaks. The complexity and short time frame of the
probe. however, led to a decision not to compartmen-
talize sensitive information. Consequently, everyone
on the joint staff of some 165 people had multi-com-
partmented clearances and access to the highest levels
of classified material. The same access held true, of
course. for the 26 members of the two Select Com-
mittees. Given the number of people with access to
these secrets. it is surprising there were not more
revelations.
We are reluctant to identify leaks with too much
precision. because confirmation may help adversaries
sort out the ones we consider harmful. Suffice it to
say that the types of leaks included misleading the
media on the nature of a witness' secret testimony
several days before he appeared as a public witness as
well as revealing intelligence collection methods, the
identities of undercover personnel, and the names of a
number of countries which, in one way or another,
were trying circumspectly to be helpful to the United
causing these and other countries to have serious res-
ervations about future cooperation with the United
States. That turn of events should give us real pause.
This is a highly interdependent world. It no longer is
possible for the United States to go it alone. whether
to combat terrorism or contain Soviet/Cuban expan-
sionism in Central America.
Consider one example. On Friday, May 29, the
Committees took testimony in closed executive ses-
sion from "Tomas Castillo," the former CIA station
chief in a Central American country. At the end of
Castillo's testimony, the following colloquy took
place:
v
er our sources m ran were en genng etr t es y
an
dealing with us. Judging from the thousands executed- Mr. RUDMAN. I just want to make one cum-
the e meet. It is my understanding that the [declassi-
in the early days of the Khomeini regime an
recent execution of Mehdi Hashemi, the threat fted) transcript is going to be made available
seemed real enough.1 a Nor could we know whether sometime tomorrow to the press.
dexter overreacted. They may even have used the--
Past story as a convenient peg in their ongoing battle
over secrecy with Secretary Shultz and others. But
even if they did overreact. it is irresponsible to dis-
miss their fears as being simply irrational, power
hungry or nefarious.
Yes, some foreigners-Ghorbanifar, the Israelis,
Khashoggi, the first and second Iranian channels-did
have to know what was going on. That is the nature
of any secret international dealing. The issue is how
much should be told to anyone who did not have a
need to know to complete the operation successfully.
The simple fact is, we had no way of knowing wheth-
I d
th ' f
b --
dexter had to consider in November 1985. It seems States in a variety of foreign policy undertakings.
clear, with 20/20 hindsight, that Casey and Poin- - - Needless to say, these disclosures, and others, are
Chairman HAMILTON. That is correct.
Mr. RUDMAN. It is also my understanding that
under the rules of Congress and the Intelligence
Committees that it would be inappropriate for
any members or staff or anyone else to comment
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on these proceedings without specific permission
in some xvav from the chairman.
Chairman HAMILTON. That is correct. Under
the rules of the House Committee at least, you
cannot release classified information Without a
vote of the committee and in the Senate my un-
derstanding is it is a similar procedure.
Chairman INOUYE. That is correct. t 7
Despite these explicit statements. articles appeared in
May 30 newspapers with May 29 datelines accurately
summarizing the testimony, and quoting named mem-
bers of the Committees giving broad characterizations
of the testimony.' The declassified transcripts were
not available until Sunday night, May 31. There were
no Committee votes in the interim.
Some of these revelations by staff and Members, as
well as current and former Administration officials.
occurred during intense questioning and cross exami-
nation of witnesses and appeared to be inadvertent.
Such mistakes, however, suggest in retrospect that
this nation's security interests Would have been much
'See, for example. R.A. Zaldivar and Charles Green. 'CIA sta-
tion chief w n't renegade. congres ' The Miami Herald.
May 30. 1987. p. 16A: Fox Butterfield. "En-C.I.A. Officer Tells of
Orden to Assist Contras The New fork Times. May 30, 1987. p
7: Aceoetared Press. "Contra role told by ex-CIA agent." Chicago
Tribune. May 30. 1987, p. 5 Interestingly, The Washington Pont. the
newspaper that publishes Bob Woodward's intelligence disclo-
sures.distinguished itself from the others this day by refusing to
publish certain classified information. The Pont also gave no details
about Castillo's testimony and quoted Sen. Rudman refusing in give
information. Dan Morgan. 'Higher-Level CIA Officials Man Be
Subpoenaed on Contra Aid.' The Washington Posr. May 30. 1987. p
AS.
better served had we decided to take more testimony
in closed session. Potentially damaging slips of the
tongue could then have been redacted before a tran-
script was made available to the public.
As a consequence of this probe. and that of Judge
Walsh. this nation's intelligence community could be
facing the same situation it confronted more than a
decade ago after the Church and Pike Committees
investigations. Leaks from those inquiries seriously de-
bilitated our overall intelligence capabilities and it
took us over a decade to repair the damage. A rerun
of that sorry chapter would have grave national cu-
rity implications, coming on the heels of a series of
very damaging spy scandals epitomized by the
Walker family case.
What happened to Castillo's testimony, which was
open to all Committee members and many staff. con-
trasts sharply with the executive session deposition of
Admiral Poindexter on May 2. 1987. The two select
Committees recognized that the Admiral's testimony
on the diversion of funds was the pivotal. and poten-
tially most explosive political question of this whole
investigation. As a result. extraordinary steps were
taken to protect the information. Specifically. only
three staff attorneys and no Members of either Com-
mittee participated in the secret questioning. The suc-
cess of these procedures speaks volumes on how to
protect secrets. In the final analysis, as Chairman
Hamilton noted in a perceptive article on protecting
secrets that appeared in the September 4, 1985 Con-
gressional Record. "Leaks are inevitable when so many
people handle secrets."ir The most effective way of
ensuring secrecy is to restrict access to sensitive infor-
mation to just a handful of responsible people.
1. Shultz Test., Hearings, 100-9, 7/23/87, at 52.
2. Henry J. Hyde, "How To Reduce The Leaks, Case
for a Joint Intelligence Committee," The Washington
Times, October 12, 1987, pp. DI, D4.
3. U.S. Central Intelligence Agency Bicentennial Pub-
lication, Intelligence in the War of Independence, published
by the Nathan Hale Institute (1976), p. 14.
4. Edward F. Sayle, The Historical Underpinnings of the
U.S. Intelligence Community, reprinted by the Intelligence
Publishing Groups Inc., from I Journal of Intelligence and
Counterintelligence (1986).
5. Softer, War, Foreign Affairs and Constitutional Power
at 96-97.
6. Arthur Maass, Congress and the Common Good
(1983), p. 241.
7. Id. at 243.
8. Daniel Schorr, Cloak and Dagger Relics. The Wash-
ington Post, November 14, 1985, A23.
9. William Colby, Honorable Men (1978), p. 423.
10. Brit Hume, Mighty Mouth, The New Republic, Sep-
tember 1, 1986, p. 20..
It. Robert J. Caldwell, "Button the loose lips in Con-
gress," The San Diego Union, July 26, 1987, pp. 1,8.
12. Meese Test., Hearings, 100-9, 7/29/87, at 350-51.
13. Bob Woodward, Veil: The Secret Wars of the CIA
1981-1987 (1987), pp. 158, 160.
14. Bob Woodward, CIA Anti-Qadhafi Plan Backed, The
Washington Post, November 3, 1985, pp. Al, A19.
IS. Barbara Matusow, "Woodward Strikes Again," The
Washingtonian (Sept. 1987), pp. 114, 234.
16. See Chapter 8 of the Minority Report, "The Iran
Initiative," at p. 520.
17. Castillo testimony, May 29, pp. 85-86.
18. Hon. Lee H. Hamilton. Protecting Secrets, Congres-
sional Record, September 4, 1985, pp. E3855-56.
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APPENDIX 10
Resolution No. 88-10
(National Security)
RESERVE OFFICERS ASSOCIATION OF THE UNITED STATES
Notification of Covert operations
WHEREAS, the responsibility for the conduct of foreign rela-
tions and for ensuring the security of the United States is vested
in the Executive by the Constitution and has rested with the
President since the founding of the nation; and
WHEREAS, the current statutory framework governing the
management of covert actions within the Executive Branch is
working well and only very rarely has the Executive failed to
notify the Congress of covert operations within 48 hours; and
WHEREAS, because there is a worldwide perception that
sensitive information is not safe with those not directly involved
with a covert activity, congressional-.notification could
discourage foreign cooperation; and
WHEREAS, in reacting to what the Congress concluded in its
investigation of the Iran-Contra Affair was "the failure of indi-
viduals to observe the law, not:from deficiencies in existing
law or in our. system of governance", the Congress now proposes
legislation which would require the President, in every case, to
notify Congress within 48.hours of covert operations; and
WHEREAS, this legislation could preclude the President from
acting in the national interest and place the United States at a
potential disadvantage in responding to situations which may
threaten our national security; and
WHEREAS, opposition to the 48-hour provision is bipartisan
and includes nearly every former national security advisor and
senior national security official of past administration; and
NOW, THEREFORE, BE IT RESOLVED that the Reserve Officers
Association of the United States, chartered by Congress, urge the
Congress not to impose a mandatory requirement for the President
to notify Congress of covert operations within 48 hours to allow
the Executive the needed flexibility intended by the Constitution.
Adopted by the National Convention
Evan L. Hultman
Major General, AUS (Ret.)
National Executive Director
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The Congress is considering legislation that, without excep-
tion, would require the President to inform the Congress of any
and all covert operations within 48 hours.
The responsibility for the conduct of foreign relations and
for ensuring national security is vested in the Executive by the
Constitution. The current statutory framework governing the
management of covert actions within the Executive Branch is
working well and only very rarely has the Executive failed to
notify the Congress of covert operations within 48 hours. The
Congress concluded in its investigation that the Iran-Contra
Affair was "the failure of individuals to observe the law, not
from deficiencies in existing law or in our system of
governance."
The requirement to notify the Congress of every covert action
within 48 hours is an overreaction-to the actions of zealous
individuals which may or may not have been precluded by law. More
importantly, there probably have been and conceivably could be
rare instances when, because of sensitivity, time or communication
restraints, the requirement to notify anyone outside the Executive
Branch could jeopardize a covert operation. The
legislation could preclude the President from acting in the
national interest and place the United States at a potential
disadvantage in responding to situations which threaten our
national security. .
In March the Senate adopted S. 1721, a measure which includes
the 48-hour provision, by a large margin., The House Foreign
Affairs Committee approved a similar bill (H.R. 3822) the week of
20 June by a 22-17 vote. House approval is anticipated, but the
narrower House margin suggests that opponents of the bill are
being heard. The President has promised to veto the bill, and
opponents believe a veto can be sustained by the House.
The integrity of Congress or the security of the informa-
tion is not an issue here, but as long as there is a widely held
perception that sensitive information is not always safe with
those not directly involved with a covert activity, the require-
ment to notify the Congress can preclude necessary cooperation of
those whose identities must remain secret.
Opposition to the 48-hour provision is bipartisan and
includes nearly every former national security advisor and senior
security official of past administrations.
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At its National Convention in Las Vegas, ROA unanimously
adopted a resolution opposing a requirement for the President to
notify the Congress of all covert operations within 48 hours. In
giving the Executive the responsibility for national security, the
Constitution provides flexibility. ROA urges the Congress.not to
take away needed flexibility by a-48-hour. notification require-
ment. The Congress is urged to consider very carefully changes to
a system which. is not broken.
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John H. Buchanan, Jr.
Chairman of the Board
APPENDIX 1.1
Sid meric nWay
ACTION FUND
Honorable Dante Fascell
Chairman
House Committee on Foreign Affairs
2170 Rayburn
Washington, D.C. 20515
Dear Chairman Fascell,
I am writing to you on behalf of the People for the American
Way Action Fund, a 270,000-member nonpartisan consitutional
liberties organization. I also write as one who served on the
Foreign Affairs Committee for 14 years.
On Tuesday, June 21, 1988, the Foreign Affairs Committee
will conduct its mark-up of H.R. 3822, the "Intelligence
Oversight Act of 1988." I testified before the House Intelligence
Committee in support of the bill, and the People for the American
Way Action Fund strongly urges you to support H.R. 3822.
Enclosed you will find a short memorandum which explains why
the "Intelligence Oversight Act of 1988" is an essential piece of
legislation, a statutory reform mandated not only by the Iran-
contra affair, but also by the rightful role of congressional
oversight in our constitutional government. In addition, our
memorandum addresses the weakness of the administration's
National Security Council directive on covert action as a long-
term solution to the problem of strengthening congressional
oversight of intelligence activities. Lastly, we have outlined
the unconstitutional nature of a proposed amendment to the bill
which would create criminal penalities, a new felony, against
Members of Congress and their staff for disclosing classified
information received pursuant to intelligence oversight.
We also ask that you oppose amendments which will weaken the
bill, in particular one which creates criminal penalties against
Members of Congress and their staff for disclosing information
received pursuant to intelligence oversight. We have enclosed a
summary legal analysis prepared by the Washington, D.C. law firm
of Wilmer, Cutler & Pickering which concludes that such an
amendment would violate the Constitution.
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We will also be sending you a copy of the complete analysis.
Although the objective of safeguarding sensitive national
security information is important and legitimate, under our
Constitutional framework it is both necessary and possible to
attain that objective through means other than the amendment to
be proposed. We recommend that the Congress hold hearings on the
subject of safeguarding against disclosures in both the Congress
and the Executive Branch.
My sixteen years as a Member of Congress has led me to
certain personal convictions about the institutional
responsibilities of the Congress in our constitutional form of
government. Congressional oversight of the intelligence
community, particularly "special" or covert activities, is
central to the legitimate foreign policy and national security
role of Congress. This goes beyond the fundamental oversight role
of Congress in authorization, appropriations, and execution of
government programs and policies. The Constitution gives both the
Congress and the Executive specific foreign policy powers. It
does not make foreign policy the exclusive domain of one branch
of government. The result is a system of checks and balances
which ensures that our nation's foreign policy and national
security framework is consistent with the policy, law, and
interests of our nation.
On behalf of the People for the American Way Action Fund, I
urge you to support H.R.,3822, the Intelligence Oversight Act of
1988." Recently the Senate, in a strong show of bipartisan
support, passed its version of the bill by a vote of 71-19. We
believe that H.R. 3822 deserves.the support of the Foreign
Affairs Committee, the entire Congress, and of the president.
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A m re ican ~ay
ACTION FUND
MEMORANDUM IN SUPPORT OF H.R. 3822, -THE INTELLIGENCE
OVERSIGHT ACT OF 1988,? AND IN OPPOSITION TO AN AMENDMENT TO
CRIMINALIZE DISCLOSURE OF INFORMATION BY MEMBERS OF CONGRESS
AND THEIR AIDES
I. A. STATUTORY SOLUTION FOR INTELLIGENCE OVERSIGHT VERSUS A -
,.SECRET DIRECTIVE.
The administration and the Congress both have proposed ways
to change the current system of intelligence oversight. One will
result in more effective oversight, the other in less.
The administration doesn't want the law changed and has
promised that President Reagan will veto legislation to this
effect. Instead, President Reagan has issued a secret directive
through the National Security Council that he says will prevent
future covert action scandals. The directive, "NSDD 296" is just
one'in a series called National Security Decision Directives
(NSDDS) created by President Reagan. He has issued almost 300
NSDDS.
However,?to ensure that covert actions are conducted in
accordance with established law and policy, Congress through its
select intelligence committees, must know what the
administration's policies are and how they are being carried out.
Covert actions must, by definition, remain secret. This is all
the more reason such actions should be conducted according to a
public statute, not a secret directive.
NSDDs are by nature.a particularly poor substitute for a
change in law because they are: (1) "Born classified," and unlike
other presidential instruments such as executive orders, they are
not published in any register. (2) Only revealed to Congress
under irregular, arbitrary, or accidental circumstances. Even the
Intelligence Committees do not receive copies of NSDDS when they
are issued.
The uncertain legal character of NSDDs make them poor
long-term solutions: (1) Each president can change or abolish the
national security directives of previous presidents. (2) The
president's "solution" on covert action could evaporate in less
than a year. It could also be amended by another NSDD about which
Congress might not be notified.
2000 M Street, NW, Suite 400, Washington, D.C. 20036 [phone]
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H.R. 3822, the "Intelligence Oversight Act of 1988" is
preferable in both form and substance to the president's
directive NSDD 286. The bill deserves the support of the Foreign
Affairs Committee, the entire Congress, and of the president.
A. The bill responds to the recommendations of the Iran-
Contra Committee. It ensures that our system of checks and
balances is operating smoothly: It emphasizes the responsibility
of elected officials -- the president and Congress -- for actions
of un-elected officials like Lt. Col. North and Admiral
Poindexter.
B. The bill creates clear standards of accountability and
communication for the Executive Branch and Congress. The aspect
of the bill that has attracted the most attention is the so-
called "48-hour" rule. This requires that the president notify
the House and Senate Intelligence Committees in advance of all
covert operations, except, as the bill clearly states "on rare
occasions when time is of the essence." In such cases, the
president must still inform the two committees about the
operation, but no later that 48 hours after its authorization by
the president. The 48-hour rule is essential to close the
loophole that the Reagan administration used to conduct the Iran-
contra operation. The rule would added needed objectivity to the
standard by which the Executive Branch is guided in notification.
In addition the notification is limited to the eight most trusted
elected officials in.Congress.
C. The bill does not allow Congress to usurp presidential
power by controlling covert operations. The House bill puts into
law a specific definition of covert activities and gives the
president sole responsibility for carrying them out. Congress
can't veto a covert operation or otherwise override the
president's decision, except through the power of the purse,
which it has always had. The only presidential power that is
limited by the legislation is the president's power to deny
Congress information that in our democracy it is entitled to
have.
III. THE AMENDMENT TO CRIMINALIZE "LEAKS" BY MEMBERS OF
CONGRESS AND THEIR AIDES
Opponents of H.R. 3822 will likely propose an amendment at
the Foreign Affairs Committee mark-up which would impose criminal
liability on Members of Congress and their aides for disclosures
of classified information supplied to them pursuant to
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V4
intelligence oversight law. Although the objective of
safeguarding. sensitive national security secrets is,important and
legitimate, under our Constitutional framework it is both
necessary and possible to attain that objective through means
other than this proposed amendment.
The amendment was first offered. by Representative Robert.
Livingston (R-LA) in the-House Intelligence Committee where it
failed to win support.- Representative Henry Hyde (R-IL) a member
of both the Intelligence and. Foreign Affairs Committees is
expected to propose the amendment again on Tuesday.
The amendment offered by Rep. Livingston reads as follows:`
Sec. 506. "Any person who, having received classified
information pursuant to the provisions of this title,
knowingly and willfully discloses the substance of that
informationwithout the authorization of the President,
unless pursuant to the applicable'rules of.the House of
Congress of which that person is a Member, officer or
employee, shall be fined not less than $1000 nor more
than $20,000 or imprisoned for not less than ninety-
days nor more than five years, or both."
The People for the American Way:Action Fund-has asked-the
Washington, D.C. law firm of Wilmer,?-:Cutler, and Pickering to
prepare a legal analysis of the proposed amendment. The analysis
concludes that the proposed amendment, and thus its counterpart
to be offered in the Foreign Affairs Committee,, appears to.
violate the United States Constitution in several respects. A
summary, and a copy of the memorandum are attached.
A. Separation of Powers
The amendment raises serious questions under the doctrine of
separation of powers. The amendment empowers the Executive branch
to interfere with the constitutional functions of Congress in
several ways: - "
* Creating a criminal statute targeted exclusively at the
Legislative Branch and its Members.
* Requiring Presidential authorization of disclosures,
effectively allows the Executive Branch to define what
acts by Members and their aides are criminal.
* Incorporation of the Executive Branch's classification
system effectively allows the Executive Branch to
control the information which Members and their aides
may use to debate and discuss issues within the
legitimate national security and foreign policy
jurisdiction of Congress.
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335
:h: amendment appears to violate the Speech and Debate
Clausf the Constitution because it would reach a wide range of
disclosures that occur within the sphere of legislative activity.
The following acts could be characterized as conveying
"classified" information to anyone -- even other Members of
Congress or their own aides --
Speeches or debates on the floor of the House or Senate
or during a committee or subcommittee proceeding.
* The introduction of legislation, such as a bill or
resolution proclaiming that a particular intelligence
activity is illegal.
* The preparation, drafting, and publishing of Committee
reports.
* Private discussions among Members who are n2t both
members of the intelligence committees, such as
discussions about the wisdom of particular covert
action.
* Inquiries by a Member to an Executive Branch official
about an intelligence activity, even if the recipient
is "cleared" to receive classified information of the
sort being conveyed.
* Private discussions between professional staff persons,
unless both are members of an intelligence committee
staff.
C. The First Amendment
The proposed nondisclosure amendment would appear to violate
the First Amendment rights of Members and their aides for reasons
of "overbreadth" and "vagueness."
Overbreadth. First, the amendment would have a detrimental
chilling effect upon their communications among themselves with
their constituents and the public about important matters of
national policy. Second, the amendment is overly broad because
the Executive Branch classifies a huge quantity of information
that is not sensitive from a national security standpoint. Thus,
the amendment's incorporation of the classification system as the
standard for criminal liability would prohibit the disclosure of
a substantial amount of communication that cannot be prohibited
under the First Amendment.
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Vagueness. In purporting to criminalize disclosures of the
substance" of.classified information, the proposed amendment
appears to contravene the First Amendment. Documents and
briefings that are generally denominated as "classified"
frequently convey a great deal of information which in fact is
not classified, but which is not specifically designated as such.
Thus the line between what is classified and what is not is often
unclear. The proposed criminal provision appears to be
impermissibly vague and would improperly chill the disclosure of
information that is not classified.
Although the objective of safeguard sensitive national
security information is important and legitimate, under our
Constitutional framework it is both necessary and possible to
attain that objective through means other.,.than this proposed.
amendment. The People for the American Way. Action Fund strongly
recommends that the Congress hold hearings about the need for
safeguards against disclosures of sensitive national security
information by both the Executive Branch and the Congress.
The People for the American Way Action Fund urges you to
support H.R. 3822, the Intelligence Oversight Act of 1988."
Recently the Senate, in a strong show of bipartisan support,
passed its version of the bill by a vote of 71-19. We believe
that H.R. 3822 deserves the support of the Foreign Affairs
Committee, the entire Congress, and of the president."We also
urge you to oppose amendments which will weaken the bill,
particularly the proposed amendment to create criminal penalties
against Members of Congress and their aides for disclosing
sensitive information obtained during the intelligence oversight
process. We strongly recommend that Congress hold hearings on the
need for safeguards against such disclosures by the Executive
Branch and the Congress.
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FORUM
7-A
By LOUIS STOKES
The public outrage over the
Iran-contra affair showed
that citizens want their gov-
ernment to operate in the sunlight,
not the dark The current system,
which allowed the White House to
string Congress along while it ran
an Illegal covert operation, most be
changed. The administration and
the Congress both have proposed
ways to do so. One will result in
more effective oversight, the other
its lase.
The administration doesn't want
the law changed and has warned
that President Reagan will veto
legislation to this effect Instead.
President Reagan has issued a
secret presidential directive
through the National Security
Council that he says will prevent
future covert action scandals. The
directive is just one in a series
called Notional Security Decision
Directives (NSDDS) created by
President Reagan. He has issued
almost 300 NSDDS. You are not
alone if you haven't heard of them;
neither have most members of Con-
gre66.
The president's effort misses the
point: To ensure that covert actions
are conducted in accordance with
established law and policy, the
president must be held account-
able, and Congreea, through its
Keeping covert action within the law
select intelligence comfttees. most
know what the administration's
policies are and how they are
being carried out. Covert actions
must, by definition, remain secret.
This is all the more reason such
actions should be conducted
according to a public statute, not a
secret directive.
The very nature of NSDDS shows
that they are a particularly poor
substitute for a change in law.
NSDDS are "born classified," and
unlike other presidential instru-
ments such as executive orders,
they are not published in any regis-
ter. They are only revealed to Con-
gress under irregular, arbitrary, or
accidental circumstances.
The secret nature of NSDDS also
makes them vulnerable to abuse.
For example. NSDD 159, which
was to set the rules for covert oper-
ations, required agencies outside
the CIA to obtain a presidential
"finding" before they could under-
take covert action. But two
National Security Advisors, as we
know all too well, failed to comply.
Moreover, the uncertain legal
character of NSDDS make them
poor long-term solutions. Each
president can change or abolish
It is unfortunate that the Reagan administration
must be dragged kicking and screaming into
meaningful efforts to prevent another
Iran-contra affair.
the national security directives or
previous presidents. So President
Reagan's "solution" on covert
action could evaporate in less than
a year.
During the recent hearings
before the Houvc Intelligence Com-
mittee. I found myself' in agree-
ment with several witnesses who
stressed that presidential direct-
ives are not a legitimate substitute
for a change in public law. John
Buchanan. chairman of People for
the American Way, put it suc-
cinctly: "The bottom line is that
NSDD's cannot be a solution
because they are part of the prob-
lem!"
Congress has offered another
way to prevent an Iran-contra
affair from occurring in the future.
It is called the Intelligence Over-
sight Act of 1988 and is preferable
communication for the Executive
Branch and Congress. The aspect
of the bill that has attracted the
most attention is the so-called
"48-hour" role. This requires that
the president notify the House and
Senate Intelligence Committees in
advance of all covert operations,
except, as the bill clearly states,
"on rare occasions when time is of
the essence." In such cases, the
president must still inform the two
committees about the operation.
but no later than 48 hours after its
authorization by the president. The
40-hour rule is essential to close
the loophole that the Reagan
administration used to conduct the
Iran-contra operation.
While the administration now
seems willing to admit that the
Iran-contra affair was a mistake, it
opposes the House and Senate leg-
islation. It claims that the bill
would let Congress usurp presiden-
tial power by controlling covert
operations. This is misleading. The
House bill puts into law a specific
definition of covert activities and
gives the president sole responsi-
bility for carrying them out Con-
gross can't veto a covert operation
or otherwise override the presi-
in both form and substance to the
president's directive. Recently, the
Senate. in a strong show of biparti-
san support, passed its version of
the bill by a vote of 7149. The
House of Representatives will con-
sider its version of the bill. H.R.
3822, in an upcoming vote in the
(louse Intelligence Committee. The
bill deserves the support of the
entire Congress and of the presi-
dent
First, the bill responds to the
recommendations of the Iran-con-
tra Committee. It ensures that our
system of checks and balances is
operating smoothly. It emphasizes
the responsibility of elected ofD-
cials - the president and Congress
- for actions of un-elected officials
like Lt. Col. North and Admiral
Poindexter.
Second, the bill creates clear
standards of accountability and
dent's. decision, except through 4he
power of the purse. which it as
always had. The only presidential
power that is limited by the legisla-
tion is the president's power: to
deny Congress informatiod that' in
our democracy it is entitledC to.
have.
The administration alsd claims
that the bill will increase the risk
of leaks. It fact in n very ;sensidve
cases the bill permits the sresident
to restrict notification to eight of
the most trusted elected officials in
Congress rather than to the intelli-
gence committees. This small ndm-:
her of elected leaders Is far out-
numbered by the numerous
un-elected officials and staff in the
Executive Branch who possess
information about covert opera-
tions.
Like most Americans. I believe,
the Iran-contra affair was', a-
national disgrace. It is unfortunate
that the Reagan administration
most be dragged kicking and
screaming into meaningful efforts
to prevent another Iran-contra
affair.
Rep. Stokes is chairman of Nee
House Permanent Select Committee
at intelligence, and served as a
member of the Iran-contra commit-
tee. He has represented the 21st Can-
gressisval District of Ohio since
1968
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GOVERNME
ECG
DFMAIIRAP.V
by
Steven L. Katz
Preface by
Arthur Schlesinger, Jr.
A publication of
People For The American Way
2000 M Street, Suite 400
Washington, D.C. 20036
[phone]
People For The American Way
is solely responsible for the
contents of this publication.
? Copyright 1987 by People For The
American Way. All rights reserved.
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Chapter 2
The President's
"Secret Laws"
A window through which to view the problems of excessive secrecy is the series of
directives termed the president's "secret laws" by Rep. Jack Brooks (D-TX), Chairman of
the House Government Operations Committee. The concept of a "secret law" in America
conflicts with every basic notion of democracy under the Constitution, and yet such laws
exist. They are created by the president as national security directives and have been
issued through the National Security Council (NSC) by each president since President
Truman.1 In 1976, a special Senate committee studying presidential power concluded:
In recent years, the National Security Action Memorandums of Presidents
Kennedy and Johnson and the National Security Action Directives of
President Nixon represent a new method for promulgating decisions, in
areas of gravest importance. Such decisions are not specifically required
by law to be published in any register, even in a classified form; none
have prescribed formats or procedures; none of these vital Executive
decisions are revealed to Congress or the public except under irregular,
arbitrary, or accidental circumstances?
President Reagan has designated these 'national security decision directives,"
(NSDDs). He has used NSDDs to authorize an array of activities which included the
Libyan disinformation campaign3 and the use of Presidential Findings by agencies other
than the Central Intelligence Agency (CIA), such as the NSC, to conduct covert
operations 4 In 1987, the public learned that in 1983 President Reagan had authorized,
through an NSDD, CIA training and support of secret counter terrorist squads in the
Middle East to be used for 'preemptive strikes.'"
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GOVERNMENT SECRECY: DECISIONS WITHOUT DEMOCRACY
As of June 24, 1987, President Reagan had signed, and issued at least 280 NSDDs
]Appendix A]. Today, as in years before, Congress remains uninformed about the issuance
and content of these directives. No complete list of them is publicly available because
the National Security Council claims that such a list of the president's NSDDs is
classified. One public requester seeking unclassified information about an NSDD received
the following response from the National Security Council: "The NSC has no publications
program and, most of the information in our files is =classified and, therefore unavailable
-to the public."6 These directives illustrate some of the -problems which exist on a much
wider scale in the government secrecy system.
NATIONAL SECURITY" CAN BE USED TO HIDE
NATIONAL POLICYMAIQNG
'National security' can be invoked to shroud many decisions concerning United States
policy and activity, biding these from congressional and public view. In this regard,
President Reagan defined the NSDDs which he issues through the National Security
Council:
This series shall be used to promulgate Presidential decisions
implementing national policy and objectives in all areas involving
national security.
Indeed, NSDDs issued by President Reagan involve a variety of national policies
for which responsibility is shared by Congress and which affect various existing statutes.
An examination of approximately 50 NSDDs reveals their, application to many national
policies: civil defense, world economic summits, telecommunications, commercial satellites
and space vehicles, resettlement of Indochinese refugees in the United States, production
and handling of nuclear materials, and terrorism. Other NSDDs issued by President
Reagan have involved measures affecting millions of the nation's civil servants and have
been viewed as both extreme and unconstitutional approaches to government. These have
included, for example; NSDDs requiring government employees to sign secrecy contracts,
agree to lifetime. government censorship of any writing they seek to publish, and to
undergo periodic lie-detector tests Y
NSDDs that involve the United States militarily in other countries are especially
worthy of scrutiny. They demonstrate unaccountable use of presidential. power and
potentially damaging consequences for the nation. By secretly engaging our nation in
military activity, the president jeopardizes - the essential support of Congress and the
American public. Recent examples include U.S. operations in Nicaragua and, the
surrounding region and military preparations for the invasion of Grenada.
In July 1983, President Reagan issued NSDD 100, 'Enhanced U.S. Military Activity
and Assistance for the Central American Region.' The president achieved three military
goals with NSDD 100. U.S. military activity in Nicaragua, military training in El Salvador,
and placing U.S. forces in the Caribbean three months before the October 1983 invasion
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1 341
of Grenada. In addition, the president required that the Secretary of Defense and the
Secretary of State, without revealing the secret law or fully disclosing the
administration's plans, persuade Congress and the public to support the administration's
actions. President Reagan stated in NSDD 100:
The increasing threat to U.S. national interests in Central America
requires that we strengthen our diplomatic and security efforts in the
region. The consolidation of a Marxist-Leninist regime in Nicaragua,
committed to the export of violence and totalitarianism, poses a
significant risk to the stability of Central America. Our ability to
support democratic states in the region, and those on the path to
democracy, must be visibly demonstrated by our military forces.
A program of expanded U.S. military activities and exercises both in the
Caribbean Basin and on the Pacific coast of Central America will
commence as soon as possible.
The Secretary of State and the Secretary of Defense will prepare a
coordinated legislative, diplomatic, and public affairs strategy that
supports these initiatives.10
The Iran-contra scandal reflects the'serious consequences of secretly planned
U.S. military involvement in which Congress and many government foreign policy
professionals are kept ignorant of preparations. More importantly, it reveals the potential
for secret development of U.S. foreign policy - one perhaps contradicting and
superseding publicly proclaimed policy.
SECRECY PROMOTES FUGMVE POLICYMAIGNG
The problem worsens where such secret laws are fugitive instruments for policymaking,
mobilizing executive branch personnel and federal resources in ways that conflict with
national policy and may violate our laws.
NSDDs that sustain covert activity abroad by the United States merit especially
careful examination. While covert activity may be necessary in certain situations, it must
be conducted in accordance with procedures for informing Congress and only as necessary
to protect America's vital interests.
The use of NSDDs for covert operations occurred very early in the Reagan
administration, initiating what has been called the president's 'secret war" in
Nicaragua 11 In November 1981, President Reagan, in response to a proposal by CIA
Director William Casey, issued NSDD 17 establishing a $19 million CIA covert operation in
Nicaragua and authorizing the CIA to recruit a force of 500, to be supplemented by at
least 1,000 Nicaraguan rebels being trained in Argentina.P In 1987, reports indicated that
NSDD 17 directed an estimated $50 million to Argentina to train Nicaraguan rebels.1
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342
ALTERED POC'UMENT
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The Iran-contra scandal demonstrated that covert operations are vulnerable to
the abuse of authority, secret development of questionable American foreign policy, and
misrepresentation of United States interests. Foremost among the instruments of secrecy
authorizing these activities was a single NSDD issued by President Reagan. It contravened
the president's own public policy on covert action, embodied in the president's executive
order on covert action which explicitly limited -special activities" to the CIA.14 Nonethe-
less, the National Security Council engaged in secret activities in the Middle East and
Central America, and bypassed the required reporting of covert operations to Congress.
National Security Decision Directive 159, entitled "Covert Action Policy Approval
and Coordination Procedures" was issued by President Reagan on January 18, 1985
[Appendix B]. It has two important components. First, President Reagan authorized
agencies other than the CIA, such as the National Security Council, to undertake covert
operations by virtue of a Presidential Finding. A Finding is a document signed by the
president, required by law, granting intelligence agencies permission to undertake specific
covert operations. Findings are required by law specifically so that covert activities are
accountable through the president. Second, President Reagan exempted a broad range of
covert activities by agencies other than the CIA from being labelled covert action. This
provision functions as an escape clause because it eliminates the need for a covert action
Finding, and eliminates the requirements for reporting to Congress.
Specifically, NSDD 159 was central to White House arms-for-hostages transactions
with Iran, allowing the National Security Council to mount a covert operation and
directing that it be excluded from the law requiring that it be reported to Congress. The
arms We to Iran was a radical departure from ongoing U.S. policy - an arms embargo
had been in effect since the Shah was deposed by the Ayatollah Khomeni. In fact,
Secretary of Defense Weinberger and Secretary of State Schultz opposed the secret law.
Secretary Weinberger stopped a June 1985 attempt to issue an NSDD establishing
essentially the same plan.13 Nonetheless, the "Covert Action Finding Regarding Iran" was
signed by the president, prompting shipment to Iran of 4000 TOW antitank missiles, spare
parts for radar systems purchased by the Shah and other military equipment. The CIA
played an integral role, serving as a conduit for three shipments of more than 2000
missiles in 1986.16 The new arms sale effort violated current prohibitions on such
transactions set in U.S. foreign policy and the Arms Export Act.17
The second application of NSDD 159 for fugitive U.S. policymaking was its use
by Oliver North and others who did not want their covert activity in Central America to
be reported to Congress. North and others interpreted the president's directive to mean
that a Presidential Finding was not required. North's interpretation was based on an
escape clause in NSDD 159, in which President Reagan states:
However, the provision of routine support in the form of personnel,
funds, equipment, supplies, transportation, training, logistics, and
facilities by Government components other than the CIA to support a
covert action shall not in itself be considered a separate covert action
by the supplying agency.18
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GOVERNMENT SECRECY: DECISIONS WITHOUT DEMOCRACY
Essentially everything the NSC and its 'enterprise did in Nicaragua can, be
included in the above list of 'routine support' Relying on the above provision in NSDD
159, the result, however, was that the NSC operation was not considered a covert
.operation, Congress was uninformed, and the NSC's secret war in Nicaragua continued. It
was only at a later date that- a veteran .CIA official, accustomed to the use and intent of
Presidential Findings for accountability, of covert, operations, required that one be
obtained from President Reagan. During the ban-contra bearings. in the summer of 1987,
former National Security Advisor. John Poindexter claimed that he destroyed the only
copy of the Finding ultimately obtained to authorize NSC operations in Central America.
The NSC, however, continued to insist that it was not accountable. On July 13, 1987, the
following exchange occurred between U.S. Senator George Mitchell (D-ME) and Oliver
North:
Senator Mitchell: Since the law requires that before any covert action
could be conducted, the President must specifically authorize it, since
you've testified that you conducted a covert operation, and since you've
further testified that the President neither designated the. National
Security Council to conduct. covert operations nor did he make a Finding
authorizing this covert operation, what was the legal basis for your
activities with respect to this covert operation?
Oliver North: The National Security Council staff is not includedwithin
the constraints that are depicted in either the executive order [on
covert . operations] or the NSDD [159J . as an intelligence agency.. And
thus, in neither case does the law provide that the president had to do
what you are saying he had to do.18
SECRECY DEFEATS THE CHECKS AND BALANCES SYSTEM
The secret laws reflect the extent to which the president and the executive branch
exercise unreviewable authority and. escape accountability. Regardless of the relationship
of such directives to current policy, Congress has virtually no - knowledge of their
issuance; even in the case of pertinent national - security matters, the appropriate
committees of Congress are not informed.. Even specific requests from Congress, seeking
to fulfill its intelligence oversight responsibilities under the law, have been ignored. by
current and past administrations.19
These points were underscored at a 1987 hearing of the House Government
Operations Subcommittee. The chairman of the Oversight and Evaluation Subcommittee of
the House Select Committee on-Intelligence, Congressman AnthonyBeilenson (D-CA):
What I have to say about NSDDs, as they are -called, will be brief. It is -
based on an incomplete understanding of this form of Presidential
decision. That is because-the Permanent Select Committee on Intelligence
does not receive copies ofNSDDs.2
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1 345
The lack of congressional access to NSDDs creates special problems of accountability.
Even when these laws are discovered and Congress, for example, calls for partial or
complete revocation, the executive branch continues, undetected, to implement its original
plans.
The problem is put in perspective by the more conventional system of
presidential proclamations and executive orders. These are issued according to. a
numerical accounting system and by law must be published in the Federal Register and
reproduced in the Code of Federal Regulations.2I Furthermore, while confidential or
classified executive orders have been issued and not published, they are accounted for in
the numbering system. Congress, particularly its intelligence committees, has been granted
access to these records. This system is particularly_ useful to ensure that executive orders
that have been rescinded are in fact "off the books.'
Two recent examples illustrate that the same is not true with the NSDDs. Even
when the president has promised to rescind a particular NSDD program, there is no way
to monitor such action.
National Security Decision Directive 84. NSDD 84, 'Safeguarding National Security
Information,' was issued by President Reagan in 1983 as a major policy initiative of the
administration to stop unlawful disclosures of classified information by government
employees. Its requirements include a secrecy contract for certain government employees,
possibly every Cabinet official, pledging lifetime government censorship of all writings.
The directive was publicly revealed as a Department of Justice memorandum. U.N.
Ambassador Jeane Kirkpatrick refused to sign her lifetime censorship contract, which was
presented to her by the State Department as she prepared to leave her U.N. post 23
Congress, government employees, and the public reacted negatively to the plan.
On February 15, 1984, President Reagan agreed to suspend the lifetime
censorship provision of NSDD 84 - but the practice in fact widened. Unknown to
Congress, the Reagan administration had already been using a censorship contract
developed by the CIA.24 NSDD 84 had merely revised this contract and extended its
application throughout the government.
President Reagan interpreted suspension of the censorship portion of NSDD 84 in
the narrowest possible terms: refrain from using the revised censorship contract. The
president then continued a widespread, program of censorship agreements using the
original CIA contract. In September 1986, the General Accounting Office revealed several
startling statistics resulting from a study that did not even include the Central
Intelligence Agency or the National Security Agency: 11 agencies alone reported 290,000
government workers had been required to sign the lifetime censorship contract because of
access to intelligence information, and the policy continued in numerous agencies ranging
from the Agency for `International Development to the Securities and_ Exchange
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GOVERNMENT SECRECY: DECISIONS WITHOUT DEMOCRACY
Commiission.u The practice has also been extended to hundreds of government
contractors and university research scientists who have received federal grants. Thus,
executive branch practice has been a far ay from rescinding the censorship program.
Moreover, Congress could not hold the president to? his word: NSDD 84, remains
effectively intact today.
National Security Decision Directive 145. NSDD 145, 'National Policy on
Telecommunications and Automated Information Systems Security," was issued by
President Reagan in 1984 to govern the security of telecommunications and computerized
information systems. It set unprecedented restrictions on access to computerized
information that is.not classified and is held not only by the federal government but also
by private companies, libraries, and universities. Furthermore, the president gave the
enforcement authority for the new policy to a highly. secretive military entity -- the
National Security Agency.
Public awareness of this directive, a very technical subject area, occurred almost
by accident: the resignation of former White House National Security Advisor John
Poindexter for his role in the Iran-contra scandal. Although the directive was known to
a small number of exceptionally well-informed citizens, public awareness of NSDD 145
heightened during the investigation of Poindexter's final days at the National Security
Council. Among the orders and directives that drew attention was a Poindexter
memorandum that was the Reagan administration's 'first attempt to implement NSDD
145.26
Congress; librarians, scientists, information companies, and concerned citizens
reacted quickly and demanded withdrawal ?of the Poindexter memorandum. The reasons for
concern were obvious: awesome reach beyond the government, its military authority, and
questionable constitutionality. Congress also responded with legislation to address the
legitimate needs for computer security, creating.more reasonable controls and supplanting
NSDD 145.27
In this case, the administration was eager to-disassociate itself from. Poindexter
and withdrew the implementing memorandum on March 17,1987. While NSDD 145 appears
to be dormant, strong evidence exists that another. implementing memorandum will be
produced.
National policymaking, fugitive policy instruments, and the lack of accountability
for action authorized by the president are- troubling qualities of National Security
Decision. Directives and presidential power. By using the. National Security Council to
create unreviewed policies, the president has ignored our constitutional system of
separation of powers and checks and balances. However, the use of such directives and
the propensity for excessive secrecy is an. institutional problem. It is not unique to the
Iran-contra affair or the Reagan administration, and it is not likely to disappear in 1988.
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1. National Security Decision Directives (NSDD) under President Reagan; Presidential
Directives (PD) under President Carter, National Security Decision Memorandums
(NSDM) under Presidents Ford and Nixon; National Security Action Memorandums
(NSAM) under Presidents Kennedy and Johnson; and National Security Council
Presidential ("P") and 'Mill' Papers under Presidents Truman and Eisenhower.
Source: Judicial, Fiscal, and Social Branch. The National Archives. Washington, D.C.
2. Special Committee on National Emergency and Delegated Emergency Powers,
'National Emergencies and Delegated Emergency Powers,' U.S. Senate, 94th
Congress, 2nd Session, S. Rcpt. No. 94-922,28 May 1976, p. 16.
3. 'State Dept. Acted to Block U.S.-Egypt Attack on Libya,".: Washington Post, 20
February 1987, p. Al, A27.
4. National Security Decision Directive 159, 'Covert Action Policy Approval and
Coordination Procedures; 18 January 1985.
5. Bob Woodward, VEIL. The Secret Wars of the CIA 1981-1987 (New York: Simon
and Schuster, 1987), p. 394.
6. Office of Information Policy and Security Review, National Security Council,
Letter from the Director, 26 April 1984.
7. National Security Decision Directive 1, 'National Security Council Directives; 25
February 1981, Revised 17 December 1981.
8. National Security Decision Directive 23, 'U.S. Civil Defense Polity," 3 February
1982.
National Security Decision Directive 25, 'Preparations for the Economic and
NATO Summits June 1982," 12 February 1982.
National Security Decision Directive 60, 'Preparations for the 1983 Summit," 9
October 1983.
National Security Decision Directive 145, 'National Policy on Telecommunications
and Information Systems Security; 17 September 1984.
National Security Decision Directive 94, 'Commercialization of Expendable Launch
Vehicles,' 16 May 1983.
National Security Decision Directive 68, Nuclear Materials,-18 November 1982.
(official title not public).
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National Security Decision Directive 138, International Terrorism, 1984.. (official
title and exact date not public).
9. National Security Decision Directive 84, 'Safeguarding National Security
Information; 11 March 1983.
National Security Decision Directive 196, 'Counterintelligence/Countermeasure
Implementation Task Force," 1 November 1985.
10. National Security Decision. Directive 100, "Enhanced U.S. Military Activity and
Assistance for the Central American Region,' 23 July 1983.
11. John Prados, Presidents' Secret Wars, (New York: Wm. Morrow & Co., 1987).
12. Ibid., pp. 371, 379.
See above, n. 5, pp. 173, 174, 187.
13. 'Rebel Fund Diversion Rooted in Early Policy; Washington Post,1 January 1987,
p. Al, A24.
14. Executive Order 12333, Sec. 3 (4 December 1981).
The order provides that 'no agency except the CIA ... may conduct any special
activity (elsewhere defined to include covert actions overseas) unless the
President determines that another agency is more likely to achieve a particular
objective.'
In its final report issued in 1987, the Iran-contra Committee concluded: "There
was no Presidential determination that the NSC staff should conduct the Contra
covert operation, and thus the NSC staffs covert action in support of the
Contras violated the President's executive order.' "Report of the Congressional
Committees Investigating the Iran-Contra Affair; H. Rept. No. 100-433 and S.
Rept. 100-216, 100th Congress, 1st Session, November 1987, p. 416.
15. Testimony by John Poindexter, Iran-contra Hearings, Federal News Service
transcript, 20 July 1987, p. 12-L
16. 'Pentagon Fumbled on TOWS for Iran; Washington Post,1 August 1987, p. All.
17. 'Weinberger Highlights a Problem: Did '85 Sales to Iran Break Law?' Washington
Post, 1 August 1987, p. A10.
See above, n.6.
19. Taking the Stand. The Testimony of Lt. CoL Oli-iv L. North, (New York Pocket
Books, 1987), p. 527.
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20. The Intelligence Oversight Act requires that the intelligence committees of
Congress be provided on request 'any information or material concerning
intelligence activities' in the possession of the intelligence community.
21. Prepared testimony of Rep.=-Anthony C. Beilenson, Committee on Government
Operations Subcommittee on Legislation and National Security, 17 March 1987,
p.1.
22. This system began in 1907 and publication has been required since passage of the
Federal Register Act in 1935 [44 US.C.1505(a)].
23. Prepared statementt? of Harold Relyea, Specialist in American National
Government, Congressional Research Service, Library of Congress. Before the
House Committee on Government Operations, 17 March 1987, p. 2.
24. Angus MacKenzie, 'Fit To Be Tied," Quill, July/August 1985, p.13.
26. General Accounting Office, 'Information and Personnel Security: Data on
Employees Affected by Federal Security Programs,' GAO/NSIAD-86-189FS,
September 1986, p. 3.
27. National Security Council, 'National Policy on Protection of Sensitive, but
Unclassified Information in Federal Government Telecommunications and
Automated Information Systems,' NTISSP No. 2, 29 October 1986.
28. The Computer Security Act of 1987, H.R. 145. Introduced 6 January 1987.. Passed
by the House of Representatives 22 June 1987.
'To provide for a computer standards program within the National Bureau of
Standards, to provide for Government-wide computer security, and to provide for
the training in security matters of persons who are involved in the management,
operation, and use of Federal computer systems, and for other purposes.'
'Reagan Rebuffed on Computer Files: House Bill Wrests Control of Access From
the Military; New York Times, 23 June 1987.
29. Ross Gelspan, 'Reagan Seeks Controls On Database Access,' Boston Globe, 20
April 1987, p. 36-7.
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Appendix A
National Security Decision Directives (NSDD) do not appear in published records of the
president or the National Security Council. The following list of NSDDs has been
compiled from those publicly known to exist. Some are now declassified, in partial or
whole form, and are in the National Archives, Washington, D.C, Record Group 273,
Records of the National Security Council.
? Indicates general subject and/or date, but specific title and/or date not public.
NSDD 1 "National Security Council Directives; February 25, 1981. Revised,
December 17,1981.
NSDD 2 'National Security Council Structure," January 12, 1982.
NSDD 3 'Crisis Management -- Special Situation Group," 1981. ?
NSDD 5 'Conventional Arms Transfer Policy; July 8, 1981.
NSDD 6 "United States Non-Proliferation and Peaceful Nuclear Cooperation
Policy; July 16, 1981.
NSDD 8 Space Transportation System Policy, 1981. ?
NSDD 12 "Strategic Forces Modernization Program; October 1, 1981.
NSDD 13 'Nuclear Weapons Employment Policy' *
NSDD 17 Deterring Cuban Models / Covert Action in Nicaragua, November 23,
1981.*
NSDD 19 'Protection of Classified National Security Council and Intelligence
Information; January 12, 1982.
NSDD 22 "Designation of Intelligence Officials Authorized to Request FBI
Collection of Foreign Intelligence; January 29, 1982.
NSDD 23 'U.S..Civil Defense Policy; February 3,1982.
NSDD 25 'Preparations for the Economic and NATO Summits, June 1982," February
12,1982.
NSDD 26 'U.S. Civil Defense Policy," March 16,1982.
NSDD 30 Anti-terrorist Policy / State Department, 1982. ?
NSDD 32 National Strategy, May 1982. '
NSDD 35 MX Basing Mode, May 17,1982. ?
NSDD 38 'Staffing At Diplomatic Missions and Their Constituent Posts; June 2,
1982.
NSDD 42 National Space Policy, 1982. ?
NSDD 47 'Emergency Mobilization Preparedness," July 22, 1982.
NSDD 50 Space International Payloads, August 6,1982. ?
NSDD 60 'Preparations for the 1983 Summit," October 9,1982.
NSDD 68 Nuclear Materials, November 18, 1982. ?
NSDD 75 Strategy Regarding Soviet Union/Covert Operation. ?
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NSDD 77 'Management of Public Diplomacy Relative to National Security; January'
14,1983.
NSDD 80 'Shuttle Orbiter Production Capability; February 3,1983.
NSDD 84 'Safeguarding National Security Information," March 11,1983.
NSDD 85 'Eliminating the Threat from Ballistic Missiles, March 25,1983. -
NSDD 89 "fhe.Export Administration Act, April 11,1983.:.
NSDD 90 'United States Arctic Policy; April 14, 1983. NSDD 91 ICBM Guidance, April 1983.'
NSDD 93 'Refugee Policy and Processing Refugees from Indochina; May 13,1983.
NSDD 94 'Commercialization of Expendable Launch Vehicles," May 16,1983.
NSDD 97 'National Security Telecommunications Policy," August 3, 1983.
NSDD 99 Lebanon.'
NSDD 100 'Enhanced U.S. Military Activity and Assistance for the Central
American Region; July 28,1983.
NSDD 102 'U.S. Response to Soviet Destruction of KAL Airliner,' September 5,
1983.
NSDD 111 Middle East Policy, October 29,1983.'
NSDD 113 Radio Telephone COMSEC Government Limousines.
NSDD 119 Strategic Defense Initiative, 1984. ?
NSDD 124 U.S. Objectives in Central America and Mexico, February 1984:'
NSDD 127 Strategic Policy. ?
NSDD 138 International Terrorism, 1984.
NSDD 143 'U.S. Third World Hunger Relief: Emergency Assistance; July 9,1984.
NSDD 144 National Space Strategy, August 15,1984.'
NSDD 145 'National Policy on Telecommunications and. Automated Information
Systems Security; September 17, 1994.
NSDD 156 'U.S. Third World Food Aid: A 'Food,For. Progress' Program,! January 3,
1985.
NSDD 159 'Covert Action Policy Approval and Coordination Procedures,
January 18,1985.
NSDD 164 'National Security Launch Strategy," February 25, 1985.
NSDD 166 U.S. Support to Afghan Rebels, April, 1985.'
NSDD 167 'Food For Progress Program Implementation,' April 29,1985.
NSDD 168 "U.S. Policy Towards North Africa,' April 30,1985.
NSDD 172 Strategic Defense Initiative, 1985. ?
NSDD 175 'Establishment of a Blue Ribbon Commission on Defense Management,'
June 17,1985.
NSDD 178 Strategic Policy.
NSDD 179 'Task Force on Combating Terrorism," July 20, 1995.
NSDD 181 Space Shuttle Pricing Policy, August 1,1985.'
NSDD 189 'National Policy on the- Transfer of Scientific, Technical, and.
Engineering Information; September 21,1985.
NSDD 192 SDI/Narrow Interpretation of ABM Treaty, October 12,1985.
NSDD 196 'Counterintelligence / Countermeasure Implementation, Task Fora;
November 1,1985.
NSDD 197 'Reporting Hostile Contacts and Security Awareness,' November 1,1985.
NSDD 201 'National Security Emergency Preparedness Telecommunications Funding,"
December 17,1985.
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NSDD 202- Arms Control'
NSDD 207 Protection of Spouse of Foreign Heads of State.'
NSDD 219 Blue Ribbon Commission on Defense Management, April 1,1986.
NSDD ? 'Narcotics and National Security; April 8, 1986.
NSDD 254 'United States Space Launch Strategy; December 27,1986.
NSDD 259 'U.S. Civil Defense Policy; February 9,1987.
NSDD 266 'Implementation of the Reaommeadations of the President's Special
Review Board; March 31,1987.
NSDD 276 'National Security Council Interagency Process,' June 9, 1987.
NSDD 280 'National Airlift Policy,' June 24, 1987.
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Appendix B
Extract From National Security Decision Directive 159
January 18, 1985
COVERT ACTION POLICY APPROVAL
AND COORDINATION PROCEDURES
Approval Procedures for Intelligence
1. Presidential Findin s. The President shall approve.
all covert action n ngs n writing. Under Section 662 of
the Foreign Assistance Act of 1961, as amended, all covert
actions undertaken by the Central Intelligence Agency must be
authorized by a Presidential Finding that each such operation
is-important?to US national security. E.O. 12333 and this
Directive establish that covert actions (intelligence "special
activities*) undertaken by components other than CIA also
require a Presidential Finding. Each covert action is also
considered a significant anticipated intelligence activity
under Section 501 of the-National Security Act and is subject
to certain Congressional reporting procedures. The
Congressional reporting procedures for significant intelligence
activities apply to all agencies of the intelligence community.
Findings shall remain valid until formally cancelled. L78:7
2. In accordance with Executive Order 12333, the Contra.-
Intelligence Agency shall conduct covert actions unless the
President specifically designates another agency of the govern-
ment. When the provision of substantial support by one govern-
ment component to another is essential to the conduct of a
covert action, indication of the extent and nature of that
support shall be included as part of the Finding or Memoranda.:
of Notificifibn. However, the provision of routine support in
the form of personnel, funds, equipment, supplies, transporta-
tion, training, logistics, and facilities by Government eonpo-
nents other than CIA to support a covert action shall not in
itself be considered a separate,covert action by.the supplying
arli~'I; i+::+ssiSellielease o ..M-1!Y:
C X27 t TQVi b l5 of E-1. 12356
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WILMER, CUTLER & PICKERING
2445 M STREET, N. W.
WASHINGTON, D. C. 20037-1420
EXECUTIVE SUMMARY OF MEMORANDUM CONCERNING
THE CONSTITUTIONALITY OF A PROPOSED AMENDMENT
TO H.R. 3822 WHICH WOULD CRIMINALIZE
DISCLOSURES OF CLASSIFIED INFORMATION BY
MEMBERS OF CONGRESS AND THEIR AIDES
Set forth below is an Executive Summary of a memorandum
being prepared by this Firm for People for the Amer-ican Way con-
cerning the constitutionality of a proposed amendment to the
Intelligence Oversight Act of 1988 (H.R. 3822) which would impose
criminal liability on members of Congress and their aides for
disclosures of classified information supplied pursuant to the
statute, except as authorized by the President or the rules of
the House or Senate.
The proposed amendment to make it a crime for any Mem-
ber or Congressional employee to disclose certain "classified"
information without authorization of the President, unless pursu-
ant to House or Senate rule, appears to violate the United States
Constitution in several respects. Although the objective of
safeguarding sensitive national security secrets is important and
legitimate, under our Constitutional framework it is both neces-
sary and possible to attain that objective through means other
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First, the amendment raises serious questions under the
doctrine of separation of powers. As a criminal statute tar-
getted exclusively at the Legislative Branch and its Members, the
amendment empowers the Executive Branch to interfere in the con-
stitutional functions of Congress. The degree of inter-branch
interference. that would be brought on by the amendment results
from the amendment's targetting of the Legislative Branch, its
incorporation of the Executive Branch's classification system,
and its provision for Presidential authorization of disclosures,
which effectively confer upon the Executive Branch the authority
to define what. acts by members and their staffs constitute a
crime.
Second, the amendment appears to violate the Speech and
Debate=?..Clause of the constitution because it would reach a wide
range of disclosures that occur within the sphere of legislative
activity. Thus, the amendment would improperly criminalize any
act -- even speeches on the floor or during a committee session
-- by a member which could be characterized as conveying "classi-
fied" information to anyone -- even other Members of Congress or
their staffs -- unless there is permission from the. President or
compliance with House or Senate procedures.
Third, the amendment would appear to violate the First
Amendment rights of Members and their staffs, and would have a
detrimental chilling effect upon their communications among
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themselves and with their constituents and the public about
important matters of national policy. To be sure,-the government
has a legitimate interest, in safeguarding national security
secrets. However, notwithstanding remarks to the contrary by--
former Executive Branch officials such as Oliver North and John
Poindexter, it.has not been established that the existing frame-
work of statutes and Congressional rules fails adequately to pro-
tect this governmental interest. Moreover, because the Executive
Branch classifies a huge quantity of information that is not sen-
sitive from a national security standpoint, the amendment's
incorporation of the classification system as the standard for a
criminal liability appears to result in prohibiting the disclo-
sure of a substantial amount of communication that cannot be pro-
hibited under the First Amendment.
Finally, in purporting to criminalize disclosures of
"the substance" of classified information, the proposed amendment
appears to contravene the First Amendment because of the
vagueness of the standard. Documents and briefings that.,are
generally denominated as "classified" frequently convey a great.
deal of information which in fact,is.not classified but which is
not specifically designated as. such. Thus, the line between what
is classified and what is not is often unclear. The proposed
criminal provision appears therefore to be impermissibly vague
and would improperly chill the disclosure of information that is
not classified. _
Timothy B. Dyk
Patrick J. Carome
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357
WILMER, CUTLER & PICKERING
2445 M STREET, N. W.
WASHINGTON, D. C. 20037-1420
SUBJECT:' THE CONSTITUTIONALITY OF A PROVISION THAT WOULD
CRIMINALIZE DISCLOSURES OF CLASSIFIED INFORMATION
BY MEMBERS OF CONGRESS AND THEIR STAFFS
This memorandum examines the constitutionality of a
proposed statute that would impose criminal liability.on.Members
of Congress and their aides for "knowingly and willfully"
disclosing "the substance" of any "classified information" that.
has been provided to Congress pursuant to the Executive Branch's
statutory duties to inform Congress of "all intelligence activi-
ties." An amendment aimed at creating such a new felony was,
offered during the House Intelligence Committee's consideration
of the proposed Intelligence Oversight Act of 1988, H.R. 3822.11
UNAUTHORIZED DISCLOSURE OF CLASSIFIED INFOR-
MATION
Sec. 506. Any person who, having
received classified. information pursuant to
the provisions of this title, knowingly and
willfully discloses the substance of that
information without the authorization of the
President, unless pursuant to the applicable
rules of the House of Congress of which that
person is a Member, officer or employee,
shall be fined not less than $1,000 nor more
[Footnote continued next page]
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Although the amendment was rejected in that Committee by a tie
vote, its sponsors have announced that they plan to reintroduce
it before either the House Foreign Affairs Committee or the full
House of Representatives.?/ Some Members have expressed an
interest in examining questions as to the provision's constitu-
tionality.
The proposed amendment to make it a crime for any Mem-
ber or Congressional employee to disclose certain "classified"
information without authorization of the President, unless pursu-
ant to House or'Senate rule, appears to violate the United States
Constitution in several respects. Although the objective of
safeguarding sensitive national security secrets is important and
legitimate, under our Constitutional framework it is both neces-
sary and possible to attain that objective through means other
than this proposed amendment.
[Footnote continued from preceding page]
than $20,000 or imprisoned for not less than
ninety days nor more than five years, or
both.
A copy of,H.R. 3822 is AttachmentA to this Memorandum.
2/ See House Panel Backs Covert-Action Notice Bill, Con-
gressional Quarterly 1295 (May 14, 1988).
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1 359
First, the amendment raises serious questions under the
doctrine of separation of powers. As a criminal statute targeted
exclusively at the Legislative Branch and its Members, the amend-
ment empowers the Executive Branch to interfere in the constitu-
tional functions of-Congress. The degree of inter-branch inter-
ference that would be brought on by the amendment results from
the amendment's targeting of the. Legislative Branch, its incorpo-
ration of the Executive Branch's classification system, and its
provision for Presidential authorization of. disclosures, which
effectively confer upon the Executive Branch the authority to
define what acts by Members and their staffs constitute a crime..
Second, the amendment appears .to violate the Speech and
Debate Clause of the Constitution because it would. reach a wide
range of disclosures that occur within the sphere of legislative
activity. Thus, the amendment would improperly criminalize any
act -- even speeches on the floor or during a committee session
-- by a Member which could be characterized as conveying "classi-
fied" information to anyone -- even other Members of Congress or
their staffs -- unless..there is permission from the President or'
compliance with House or Senate procedures..
Third,.the amendment would appearto violate the First
Amendment rights of Members and their staffs, and would have a
detrimental chilling effect upon their communications among them-
selves and with their constituents and the. public about important
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360
matters of national policy. To be sure, the government has a
legitimate interest in safeguarding national security secrets.
However, notwithstanding remarks to..the..contrary by former
Executive Branch officials such as Oliver-North and John
Poindexter, it has not been established that the existing frame-
work of statutes and Congressional rules fails adequately to pro-
tect this governmental interest. Moreover, because the Executive
Branch classifies a huge quantity of information that is not sen-
sitive from a national security standpoint, the amendment's
incorporation of the classification system as the standard for
criminal liability appears to result in prohibiting the disclo-
sure of a substantial amount of communication that cannot be pro-
hibited under the First Amendment.
Finally, in purporting to criminalize disclosures of
"the substance" of classified information, the proposed amendment
appears to contravene the First Amendment because of the
vagueness of the standard. Documents and briefings-that are
generally denominated as "classified" frequently convey a great
deal of information which in fact is not classified but which is
not specifically designated as such. Thus, the line between what
is classified and what is not is often unclear. The proposed
criminal provision appears therefore to be impermissibly vague
and would improperly chill the disclosure of information that is
not classified.
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A. The Intelligence Oversight Act.
The Intelligence Oversight Act of 1988, H.R. 3822, is
the centerpiece of the legislative response to the unlawful
covert activities that comprised the Iran-Contra Affair.3' The
Act would repeal the Hughes-Ryan amendment of the Foreign Assis-
tance Act of 1961 (22 U.S.C. S 2422) and amend Title V of the
National Security Act of 1947 so as to consolidate and strengthen
the statutory provisions that require the President and the. heads
of agencies to keep Congress fully and timely informed of all
intelligence activities, including covert actions. Among the key
provisions of the bill is a requirement that the President give
the intelligence committees!/ prior notice of all covert actions,
or, when time is of the essence, notice as soon as possible but
in no event later than 48 hours after the President has autho-
rized covert action.' A similar bill, S. 1721, passed the
3/ Report of the Congressional Committees Investigating
the Iran-Contra Affair, H.R. Rep. No. 433, 100th Cong., 1st
Sess. 13 (1987)("Iran-Contra Report"). The Bill adopts several
recommendations expressly advanced by the Iran-Contra Committees.
See id. at 423-24.
4/ The Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of- the House of
Representatives.
5/ Other provisions include a prohibition on Presidential
authorization of covert actions except pursuant to a written
Finding signed by the President and a-ban on expending appropri-
ated funds on-a covert action unless there is such a Finding.
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B. The Proposed Amendment Concerning
Disclosure of Classified Information.
On May 11, 1988, Representative Livingston proposed an
amendment to H.R. 3822 during the House Intelligence Committee's
mark-up of the bill. The amendment would create a new crime for
disclosing the "substance" of "classified" information received
pursuant to the reporting requirements contained in the bill.
This provision is extraordinary in at least two
respects. First, if enacted, it would mark the first time that
Congress has incorporated the Executive Branch's classification
system as a general standard for criminalizing communication
activity.6/ Second, it would single out members of Congress and
their staffs as the only potential targets for criminal
liability.
The impetus for this proposed amendment appears to be a
perception by some that members and their staffs should be sub-
ject to criminal prohibitions not applicable to others in the
public or private sector who have access to information that the
Executive Branch has "classified."
6/ Congress has repeatedly rejected-proposals which would
generally make disclosure of classified information a crime. See
infra notes 81-82.
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The proposed amendment would apply to a large volume of
information. Historically, the 'Executive Branch designates much
of the information provided to the intelligence committees pursu-
ant to the existing reporting statutes as classified under, the
general executive order setting forth standards and procedures
for limiting access to "national security information." We
assume that the Executive Branch would continue this practice
under the strengthened reporting requirements contained in H.R.
3822.
The proposed amendment would exempt from the criminal
prohibition two narrow categories of disclosures of classified
information. First, disclosures that have "the authorization of
the President" would be permitted. The President's discretion to
authorize such disclosures is not limited in any way, nor are
procedures established to ensure prompt consideration of an
authorization request.
The provision would also exempt disclosures made "pur-
suant to the applicable rules" of the House or the Senate.!/
7/ At present, the applicable order is Exec. Order
No. 12,356, 3 C.F.R. 165 (1983), reprinted in 50 U.S.C. S 401, at
51 (1982).
B/ H.R. 3822, Section 501(d), would retain essentially
verbatim the requirement', now contained in 50 U.S.C. S 413(d),
that each House of Congress, in consultation with the Director of
Central Intelligence, establish by rule or resolution procedures
"to protect from unauthorized disclosure all 'classified' infor-
mation and all information relating to intelligence sources and
methods furnished to the intelligence committees or to Members of
Congress under this title."
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1 364
Rules are already in place in both houses specifying detailed and
exclusive procedures by which the intelligence committees may
"disclose publicly any information in the possession of such com-
mittee after a determination by such committee that the public
interest would be served by such disclosure."9/ In the case of
classified information provided by the Executive Branch, these
rules permit public disclosure only after a majority vote in
favor of disclosure by the committee, notification of the Presi-
dent, and, if the President objects, a majority vote in favor of
disclosure by the entire house.10/ These rules permit the intel-
ligence committees to disclose such information to other commit-
tees or members only in accordance with regulations of the intel-
ligence committees,ll/ and prohibit such other committees and
9/ Rules of the House of Representatives, Rule XLVIII,
S 7(a); Senate Manual,, Standing Order 79.13; S 8(a).
10/ Rules of the House of Representatives, Rule XLVIII,
S 7(b); Senate Manual, Standing Order 79.13, S 8(b).
11/ The rules of the intelligence, committees strictly limit
the circumstances in which such disclosures may be made. For
example, in the House, access by individual members who are not
on the intelligence committee to classified information held by
the committee may only be granted upon (1) written notice to the
clerk of the committee by the Member seeking access and (2) a
record vote by a majority of the committee approving such access.
Rules of the House of Representatives, Permanent Select Committee
on Intelligence, Rule 10(b). Members and staff of the the House
committee are barred from disclosing classified information to
anyone who is not a member of the committee or its staff, except
as directed or authorized by the committee in accordance with
House Rule XLVIII and the committee's own rules. Rules of the
House of Representatives, Permanent Select Committee on Intelli-
gence, Rules 8 and 10(e). The rules for the Senate committee are
similar. See Rules of Procedure for the Select Committee on
Intelligence, Rules 9.4, 9.6, and 10.5.
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365
members from making any disclosures except in a closed session of
the entire body. 12/ The House Committee on Standards of Official
Conduct and the Senate Select Committee on Ethics are charged
with investigating disclosures of information that do not comply
with these rules and may recommend "appropriate action such as
censure, removal from committee membership, or expulsion from the
House [Senate], in the case of a member, or removal from office
or employment or punishment for contempt, in the case of an
officer or employee." 13/
The effect of the proposed amendment to H.R. .3822 is in
most circumstances to prohibit individual members and their .
staffs from disclosing without permission of the President infor-
mation that has been provided by the Executive Branch and desig-
nated as classified by the Executive Branch.'
12/ Rules of the House of Representatives, Rule XLVIII,
T 7(c)(2); Senate Manual, Standing Order 79.13, S 8(c)(2).
13/ Rules of the House of Representatives, Rule XLVIII,
T 7(e); Senate Manual, Standing Order 79.13, S 8(e).
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366
Although Congress normally can appropriately enact leg-
islation despite the existence of doubts as to its constitution-
ality, 4/ "
- [i]n the performance of its constitutional duties
[Congress] must initially interpret the Constitution" L5/ and
should not enact legislation that it concludes is unconstitu-
tional. Congress should be especially sensitive to constitu-
tional concerns where either its own institutional prerogatives
are at stake or when important First Amendment issues are pres-
ent. The proposal to criminalize disclosures of classified
information by members of Congress and their aides raises these
concerns.
The proposed amendment raises serious questions under
the doctrine of separation of powers by extending to the
Executive Branch authority to control basic functions of the Leg-
islative Branch. The amendment would apply only the Legislative
Branch. The Executive Branch would be given the authority to de-
termine what should be classified in the first place, when
14/ See, e.g., Letter of President Franklin D. Roosevelt.to
Congressman Hill (July 6, 1935), printed in 4 The Public Papers
and Addresses of Franklin D. Roosevelt 297-98 (1938), and Quoted
in G. Gunther, Constitutional Law 24 (1985).
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The Constitution "sought to divide the delegated powers
of the new Federal Government into three defined categories, Leg-
islative,- Executive, and Judicial. . . ."16/ Many provisions of
the Constitution, and indeed perhaps its most dominant and
overarching theme, are directed at keeping "the three great
branches of the National Government . . . largely separate from
one another."17/- The declared purpose of separating and
dividing the powers of government, of course, was to 'diffus[e]
power the better to secure liberty."18/ As the Supreme Court
recently reaffirmed, the tri-partite structure of co-equal
branches is the very cornerstone of this Nation's democratic
processes:
That this system of division and separation
of powers produces conflicts, confusion, and
discordance at times is inherent, but it was
deliberately so structured to assure full,
vigorous and open debate on the great issues
affecting the people and to provide avenues
for the operation of checks on the exercise
of governmental power.19/
16/
INS v. Chadha, 462 U.S. 919, 951
(1983).
17/
Buckley v. Valeo, 424 U.S. 1,
120
(1976).
18/
Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181,
3186
(1986) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S.
579, 635 (1952)).
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368
The doctrine of separation of power prohibits two major
types of governmental action. First, it makes it impermissible
for one branch to interfere with another's,performance of its
constitutionally assigned .function." The Supreme. Court recog-
nized this fundamental aspect. of the doctrine of separation of
powers in Humphrey's Executor v. United States:
The fundamental necessity of maintaining each
of the three general departments of govern-
ment entirely free from the control or coer-
cive influence, direct or indirect, of either.
of the others, has often been stressed and is
hardly open to serious question. So much is
implied in the very fact of the separation of
the powers of these departments by the.Con-
stitution; and in the rule which recognizes
their essential co-equality.21/
The doctrine likewise prohibits one branch from usurping or being
assigned "a function that more properly is entrusted to
another." 22/ Thus, each branch is constitutionally,bound to con-
fine its exercise of authority to the function uniquely.assigned
to it, namely legisiative, executive, or judicial. 23/
20/ INS. v. Chadha., 462 U.S. at 963 (Powell, J., concur-
ring). Cases analyzing this aspect of the problem include Nixon
v. Administrator of General Services, 433 U.S. 425, 433 (1977)
and United States v. Nixon, 418 U.S. 683 (1974).
21/ 295 U.S. 602, 629-30 (1935).
22/ INS v. Chadha , 462 U.S. at 963 (Powell, J., concur-
ring).
23/ See Youngstown Sheet- & Tube Co. v. Sawyer, 343 U.S. 579
(1952); Springer v. Government of the Philippine islands, 277
U.S. 189, 203 (1928).
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The proposed amendment raises both of these concerns.
By creating a crime of disclosure that is targeted exclusively at
the Legislative Branch, it would empower . the Executive Branch to
interfere directly in necessary and . important. functions of the
Legislative Branch, namely communications among members of Con-
gress, communications between Members and their staffs, and com-
munications between members and their constituents and.the pub-
lic. Such communication is the lifeblood of the constitutional
function of legislating that is uniquely conferred upon the Con-
gress under the Constitution. 24/
The amendment would have the effect of transferring to
the Executive Branch substantial authority to direct legislators
how to handle and use information which the Constitution and
statute entitles Congress to receive and utilize. Information
about intelligence activities relating to national security is a
matter that does not lie within the exclusive province of the
Executive Branch. It has long been recognized that authority
over national security matters is "confided by our Constitution
to the political departments of the government, Executive and
Legislative."25/ Congress, as a co-equal branch of government,
24/ U.S. Const., art. I, S 1.
25/ Chicago & Southern Air Lines. Inc. v. Waterman
Steamship Corp., 333 U.S. 103, 111 (1948) (emphasis added). See
also United. States v. American Tel. & Tel. Co., 567 F.2d 121, 128
[Footnote continued next page]
{
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has a constitutional mandate to obtain information relating to
national security and defense and to use it in the process of
legislating. This mandate -- which of course entails corre-
sponding obligations to protect information which must be secret
to prevent damage to national security -- flows from the Con-
gress' power to inquire into and'monitor the executive's activi-
ties26/ as well as its express constitutional powers in the realm
of national defense and foreign policy.27/
Hand-in-hand with Congress' constitutional and
statutuory authority to receive information that relates to
national security goes the authority to use it, which necessarily
incorporates the authority to disclose it. This is not to
[Footnote continued from preceding page]
(D.C. Cir. 1977) ("While the Constitution assigns to the Presi-
dent a number of powers relating to national security . ., it
confers upon Congress other powers equally inseparable from the
national security. . . ."); Iran-Contra Report at 414-15. .
("notification enables Congress to fulfill its constitutionally
mandated role of monitoring Executive actions in the area of
national defense and foreign policy").
26/ E.o., Barenblatt v. United States, 360 U.S. 10.9, 111
(1959); Watkins v. United States, 354 U.S. 178, 187 (1957) (power
of Congressional inquiry "comprehends probes into departments of
the Federal Government to expose corruption, inefficiency, or
waste.").
27/ The Constitution reserves to Congress the powers to
"declare War," "make Rules concerning Captures on Land . and
Water," "raise and support Armies," "provide. and maintain a
Navy," and "make Rules for the Government and Regulation of the
land and naval Forces." U.S. Const., art. 1, S 8. In addition,
all treaties must be ratified by the Senate. Id., art. 2, S 2,
cl. 2.
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suggest that there should not be restrictions and safeguards to
protect against disclosures that would be harmful to national
interests, nor even that there is no place for consultation
between the political branches concerning the best methods for
protecting sensitive information. 28/ Rather, such restrictions
should be imposed and enforced as they are now, by Congress
through its own internal rules and processes or through generally
applicable legislation. To transfer to the Executive the role of
supervising Congress in this area, particularly through the mech-
anism of a criminal law, risks precisely the sort of interference
by one branch in the affairs of another that the doctrine of sep-
aration of powers prohibits. As the Supreme Court recognized in
Chadha,
[t]he hydraulic pressure inherent within each
of the separate Branches to exceed the outer
limits of its power, even to accomplish
desirable objectives, must be resisted.29/
The degree to which the proposed amendment invites
interference by the Executive Branch in the affairs of the Con-
gress is multiplied because the amendment would convey to the
Executive Branch the authority to define which disclosures by
Members or their aides constitute a crime and which are
28/ Such consultation is already contemplated by provisions
of the existing intelligence oversight laws which would be car-
ried forward in H.R. 3822. See 50 U.S.C. S 413(d) (1982).
29/ INS v. Chadha, 462 U.S. at 951.
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permissible. Under the scheme that the amendment would estab-
lish, the Executive Branch wields two distinct powers-to pick and
choose. what information may be lawfully disclosed by individuals
within the Legislative Branch. First, the classification system
that the amendment would incorporate is a creature of the
Executive Branch, and it reflects solely the decisions of
executive officers about what information should be kept
secret:30/ Neither the amendment nor any other statute enacted
by Congress erects standards by which classification decisions
are to be made.31/ As we discuss below, much information that
does not threaten national security is classified.32/ Nor is
there any assurance that even under the current executive order
agencies will not classify information for improper reasons. 33/
30/ The "classification" system is a creation of the
Executive Branch.- While some statutes (for example, the Freedom
of Information Act, 5 U.S.C. S 552(b)(1)) refer to the system,
Congress has never authorized it. Greene v. McElroy, 360 U.S.
474 (1958). See Comment, A Nation Less Secure: Diminished Pub-
lic Access to Information, 21 Harv. C.R.-C.L. L. Rev. 409, 433
(1986). The Department of Defense has in the past conceded that
"[t]here is no statute which explicitly authorizes [it] to clas-
sify information." 118 Cong. Rec. S8854 (1972),.
31/ Moreover, unlike the Freedom of Information Act's
exemption for certain national security information, the proposed
amendment includes no requirement that the information be
"properly" classified. See 5 U.S.C. S 552(b)(1) (1982).
32/ See infra pp. 34-36.
33/ There is evidence that in practice embarrassment to the
Administration sometimes plays a role in the. Executive's classi-
fication decisions. See Note, Developments in the Law: The
National Security Interest and Civil Liberties, 85 Harv. L. Rev.
1130, 1201-02 (1972).
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Second, while disclosure may be authorized by the rules in either
the House or the Senate, the amendment conveys to the President
an ad hoc authority to exempt particular disclosures of classi-
fied information from the criminal prohibition.
The possibility of abuse of executive secrecy is not
far-fetched. As two well-recognized scholars of the problem of
secrecy in government have noted:
The ad hoc quality of executive lawmaking
will be exacerbated when the assessment of
secrecy needs is tied to current political
sympathies and antipathies. Moreover, the
Executive is inherently self-interested in
expanding the scope of matters deemed
"secret"; the more that is secret, the more
that falls under executive control. There. is
surely room in our separation of powers dia-
lectic, confused as it is, to doubt the wis-
dom of allowing the fox to define the
parameters of -- not to mention guard -- the
chicken coop.34/
While somewhat ameliorated, the foregoing defects of
the proposed amendment would not be cured by the fact that the
amendment would allow disclosures to take place without the Pres-
ident's authorization if they are made pursuant to the rules of
either the House or the Senate. As a practical matter, there
will be many instances in which one or more members will believe
that a disclosure should be made either internally or publicly,
34/ Edgar & Schmidt, Jr., Curtiss-Wright Comes Home:
Executive Power and National Security Secrecy, 21 Harv. C.R.-C.L.
L. Rev. 349, 354 (1986).
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but will be unable to mobilize the cumbersome machinery of the
entire House or Senate as is necessary to obtain a formal autho-
rization for disclosure. 15/ Although the provision for disclo-
sures pursuant to rule might in some instances protect some of~
the Congress' institutional prerogatives, the-principles of sepa-
ration of powers prohibit not only interferences at an institu-
tional level, but also interferences by one branch with the
activities of individual officials of another branch. 16/
It is also no answer that the separation of powers-
issues here would arise as a result of a congressional enactment.
The Constitutional structure of separate powers cannot be evis-
cerated merely because one branch is willing to abdicate to
another its constitutionally mandated role and authority. Just
as the issue of whether a statute unconstitutionally tramples
upon the authority of the Executive Branch is never resolved by
the mere fact that a President signed the bill into law, 17/ a
35/ See su ra pp. 7-9 & notes 8-12.
36/ Thus, in Bowsher v. Sonar the concern was not that Con-
gress possessed authority to interfere with the activities of the
entire Executive Branch, but rather with the activities of one
individual officer (the Comptroller) who was. exercising executive
authority. Likewise, several of the courts that have struck down
the sentencing guidelines have held that the doctrine of separa-
tion of powers is violated because three individual judges who
sit on the sentencing commission are subject to removal from the
commission by the President. See, e.g., United States v. Brodie,
1988 U.S. Dist. Lexis 4646 (D.D.C.).
37/ For example, the constitutionality of the Gramm-Rudman-
Hollings statute was not assured by the fact that the President
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statute that unconstitutionally diminishes the role of the legis-
lature cannot stand just because a majority in both the House and
the Senate vote for it. Illustrating this point, the Supreme
Court has on more than one occasion struck down statutes passed
by Congress that constituted transfers to the executive of legis-
lative functions. 38/
In sum, the amendment would upset the delicate system
of checks and balances among the political branches and raise
serious questions under the doctrine of separation of powers.
As a criminal statute directed specifically at the con-
duct of members of Congress and,officers and employees of the
Legislative Branch, and concerned specifically with disclosure of
information received by Congress in connection with ongoing leg-
islative functions, the proposed criminal nondisclosure amendment
also appears to conflict with the Speech or Debate Clause of the
[Footnote continued from preceding page]
signed it into law. See Bowsher v. Sonar, 106 S. Ct. at 3181.
The current litigation over whether the Independent Counsel pro-
visions of the Ethics in Government Act contravenes Executive
Branch authority likewise illustrates this principle. See In re
Sealed Case, 838 F.2d 476 (D.C. Cir. 1988), prob. iuris.,noted,
56 U.S.L.W..3568 (Feb. 22, 1988). -
38/ See, e.g., A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495,.537 (1935); Panama Refining Co. v. Roan,
293 U.S. 388, 421-30 (1935).
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United States Constitution. That clause provides that "for any
Speech or Debate in either House, they [Senators and Representa-
tives]shall not be questioned in any other Place."391 It lies
at the very heart of the democratic system of separate powers "so
deliberately established by the Founders." 40/ As the Supreme
Court explained in Gravel v. United States, the ".central role of
the Speech or Debate Clause [is] to prevent intimidation of leg-
islators by the Executive and accountability before a possibly
hostile judiciary." 41/
39/ U.S. Const. art. I, S 6, cl. 1. This clause states in
full:
The Senators and Representatives shall
receive a Compensation for their Services, to
be ascertained by Law, and paid out of the
Treasury of the United States. They shall in
all Cases, except Treason, Felony, and Breach
of the peace, be privileged from Arrest dur-
ing their Attendance at the Session of their
respective Houses, and in going to and
returning from the same; and for any Speech
or Debate in either House, they shall not be
questioned in any other Place.
40/ United States v. Johnson, 383 U.S. 169, 178 (1966).
See also Reinstein & Silverglate, Legislative Privilege and the
Separation of Powers, 86 Harv. L.. Rev. 1113, 1144-46 (1973).
41/ Gravel v. United States, 408 U.S. 606, 617 (citing
United States v; Johnson, 383 U.S. 169, 181 (1966)). See also
United States v. Brewster, 408 U.S. 501, 524 (1972) (purpose of
clause is "to protect the individual legislator, not simply for
his own sake, but to preserve the independence and thereby the
integrity of the legislative process"); Reinstein & Silvergiate,
supra note 40, at 1144 (the "privilege arose dynamically to pre-
serve the functional independence of the legislature").
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377
The Speech and Debate Clause has been interpreted
"broadly" to prohibit imposing liability,, either civil or crimi-
nal, upon Members of Congress for a wide category of;activi-
ties.42/ Its scope extends well beyond "words spoken in debate,"
and encompasses "anything 'generally done in a session of the
House by one of its members in relation to the business before
it.'"43/ In addition, the clause protects not only Senators and
Representatives, but their "agent[s] and assistant[s]" as
well."/
The proposed amendment conflicts with the Speech or
Debate Clause in at least two critical respects. First, by its
terms the amendment would criminalize a substantial category of
disclosures by members and.their staffs during the course of leg-
islative proceedings or as a direct part of the legislative pro-
cess. While the provision would exempt disclosures made "pursu-
ant" to the applicable. rules of the House or Senate, many types
of disclosures within the scope of the legislative process are
possible which would not be "pursuant" to such rules. 45/
42/ United States v. Johnson, 383 U.S. at 180.
43/ United States v. Brewster, 408 U.S. at 509; United
States v. Johnson, 383 U.S. at 179; Kilbourn v. Thompson, 103
U.S. (13 Otto) 168, 204 (1881).
44/ Gravel v. United States, 408 U.S. at 616 ("for the pur-
pose of construing the privilege a Member and his aide are to be
'treated as one.'" (citation omitted)).
45/ Significantly, the Speech and Debate Clause extends to
all legislative acts, whether in accordance with or in violation
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The proposed amendment would criminalize any of the
following acts whenever they could be characterized as conveying
"classified" information to anyone -- even other Members or a
Member's own staff -- unless all of the special procedures for
disclosure spelled out in the House and Senate rules had been
fully complied with:
o Speeches or debates on the floor of the
House or Senate or during a committee or
subcommittee proceeding.
o The introduction of legislation, such as
a bill or resolution proclaiming that a
particular intelligence activity is
illegal.
o The preparation, drafting, and pub-
lishing of Committee reports.
o Private discussions among Members who
are not both members of one of the
intelligence. committees, such as discus-
sions about the wisdom of a particular
covert action.
o Inquiries by a Member to an Executive
Branch official about an intelligence.
activity, even if the recipient is
"cleared" to receive classified informa-
tion of the sort being conveyed.
o Private discussions between professional
staff persons, unless both are members
of an intelligence committee staff.
[Footnote continued from preceding page].
of the rules of the house. See Kilbourn v. Thompson, 103 U.S.
(13 Otto) at 203 (quoting Coffin v. Coffin, .4 Mass. .1 (1808)).
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All of these activities, and many others like them,
fall well within the "sphere of legitimate legislative activity"
that the Speech and Debate Clause protects from civil and crimi-
nal liability. 46/
As the Supreme Court squarely held in Gravel v. United
States, disclosures of allegedly sensitive national security
information by Members of Congress and their staffs in the course
of the legislative process cannot be the subject of a criminal
investigation or prosecution. In that case, Senator Gravel had
convened an open meeting of a Senate subcommittee, at which he
first read portions of the Pentagon Papers and then placed the
entire 47 volumes of the Pentagon Papers in the public record.
Thereafter, a federal grand jury commenced an investigation into,
inter alia, allegedly unlawful gathering and transmitting of
national defense information by Senator Gravel. The Court found
"incontrovertible" the Senator's claim that the Speech or Debate
Clause protected him from all "criminal or civil liability and
from questioning elsewhere than in the Senate, with respect to
the events occurring at the subcommittee hearing at which the
Pentagon Papers were introduced into the public record."'-71 The
Court went on to state:
46/ Tenney v. Brandhove, 341 U.S. 367, 376 (1951). See
Gravel, 408 U.S. at 624.
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The Speech or Debate Clause-was designed to
assure a co-equal branch of the government
wide freedom of speech, debate, and delibera-
tion without intimidation or threats from the
Executive Branch. It thus protects members
against prosecutions that directly impinge
upon or threaten the legislative process.--We
have no doubt that Senator. Gravel may not be
made to answer -- either in terms of ques-
tions or in terms of defending himself from
prosecution -- for the events that occurred
at the subcommittee meeting.48/
For these reasons, the proposed criminal provision
appears to constitute an unconstitional intrusion upon the legis-
lative process in violation of the Speech and Debate Clause.
This does not mean that there can be no sanctions upon Members of
Congress or their staffs for improper disclosures of sensitive
national security information. Rather, it means that within our
constitutional framework those sanctions in the legislative
sphere may come only through mechanisms -- such as those that are
already in place -- that are internal to the Legislative Branch
and that are consistent with the Speech or Debate Clause.
48/ Id. at 616. To be sure, under the Gravel case some
applications of the proposed amendment would not violate the
Speech or Debate Clause. However, in view of the immediately
narrow application to Members. and their staffs, its failure to
exempt legislative activity appears to lead to substantial
overbreadth.. See infra pp. 32-39.
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As a criminal statute that proscribes the ."disclosure"
of certain types of information, the criminal nondisclosure pro-
vision would punish.speech and other forms_.of communication.
Accordingly, the provision must be strictly scrutinized to de-
termine if it is constitutional under the First Amendment... This
is especially so because this provision would ban communications
about activities of the federal government in the areas of for-
eign policy and national defense -- speech which is surely at the
core of the First Amendment. As the Supreme Court has stated,
"there is practically universal agreement. that a major purpose of
[the First] Amendment was to protect the free discussion of gov-
ernmental affairs." Mills v. Alabama, 384 U.S. 214, 218
(1966),49/
49/ See also NAACP v. Claiborne Hardware Co., 458 U.S. 886,
*expression on public issues 'has always rested on
913 (1982)F
the highest rung of the hierarchy of First Amendment values'").
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1. In Light Of The Laws And Rules That Already
Exist To Protect Sensitive National Security
Information, There Appears To Be No Compelling
Government Interest To Be Served By The
Proposed Criminal Amendment.
As a general matter, the Supreme Court has stated that
"[t]ruth may not be the subject of either civil or criminal sanc-
tions where discussion of public affairs is concerned."501 Any
law that punishes such speech or other communicative conduct vio-
lates the First Amendment unless it serves a compelling govern-
mental interest."" As the Supreme Court recently reaffirmed in
City of Houston v. Hill, communicative conduct is "protected
against censorship or punishment, unless shown likely to produce
a clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or unrest."52/
Of course, the government has a legitimate and impor-
tant interest in safeguarding secrets that are vital to national
security. To protect this interest, the government may, within
the confines of the First Amendment, prohibit individuals with
access to truly sensitive material from disclosing it to others
50/ Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
51/ Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
52/ City of Houston v. Hill, 107 S. Ct. 2502, 2509 (1987)
(quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). See also
Landmark Communications, Inc. v Virginia, 435 U.S. 829, 842-43
(1978); Brandenburg v. Ohio, 395 U.S..444, 447-48 (1969); Bridges
v. California,.314 U.S. 252, 263 (1941); Cantwell v. Connecticut,
310 U.S. 296, 308 (1940).
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to the detriment. of national security. - But "national security"
is not a talisman that renders the principles of free speech and
free press inapplicable. 53/
One critical question is whether the proposed criminal
provision's additional burdens on First Amendment freedoms are
justified by a government interest in national security that is
not already adequately addressed within the existing legal frame-
work. As the Supreme Court has made clear, when the interest
asserted by the government is.already protected by exisiting law,
there can be no claim that a restriction on speech substantially
advances that interest so as to survive First Amendment scru-
tiny.54/
When the proposed criminal provision is viewed in the
context of laws that are already on the books, it becomes clear
that no "compelling" need for the provision exists. Congress has
already erected a delicately balanced structure of criminal and
other statutes that are aimed at safeguarding national security
53/ Nimmer, National Security Secrets v. Free Speech: Thee
Issues Left Undecided in the.Ellsberg Case, 26 Stan. L. Rev. 311,
328 ("the mere label of 'national security' or 'government
secrecy' does not foreclose a first amendment inquiry"). See
United States v. Robel, 389 U.S. 258,:264 (1967) (First Amendment
freedoms may not be subverted "in the name of national defense");
NAACP v. Button, 371 U.S. 415, 429 (1963) ("[A] State cannot
foreclose the exercise of constitutional rights by mere
labels.").
54/ FCC v. League of Women Voters, 468 U.S. 364, 386-93,
397-99 (1984).
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secrets. The criminal provisions include the Espionage Act of
1917,~as amended, and related espionage statutes; 55/ Section 798
of Title 18; the Atomic Energy Act; 56/ and the Intelligence
Identities Protection Act.57/ The espionage statutes have
generally been used to prosecute transmissions of sensitive
information "relating to the national defense" to agents of hos-
tile foreign governments." The latter three statutes prohibit
disclosures of especially sensitive information relating to
cryptography, atomic weapons and the identities of covert agents,
respectively. In addition to these criminal statutes of general
application, each house of Congress, acting pursuant to its con-
stitutional power to discipline its own members,59/ has
55/ 18 U.S.C. SS 793(d)-(e) (1982); 18 U.S.C. S 952 (1982);
and 50 U.S.C. S 783(b) (1982).
56/ 42 U.S.C. SS 2014(y)(1), 2274, 2277 (1982).
57/ 50 U.S.C. S 421 (1982).
58/ E.g., Gorin v. United States, 312 U.S. 19 (1941);
United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980),
cert. denied, 454 U.S. 1144 (1982). The scope of the espionage
statute, specifically sections 793(d) and (e) of Title 18, and
its applicability to disclosures to the press, was at issue in
United States v. Morison, 1988 U.S. App. Lexis 4066 (4th Cir.).
In that case, the United States Court of Appeals for the Fourth
Circuit upheld the conviction of a defense department employee
under 18 U.S.C. SS 793(d) and (e), and the general theft statute,
18 U.S.C. S 641, for disclosing information classified "secret"
to a British publication. -
59/ The Constitution empowers each House to "determine the
Rules of its Proceedings, punish its members for disorderly
Behavior, and with the Concurrence of two thirds, expel a Mem-
ber." U.S. Const., art. I, S 5, cl. 2.
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established for itself a carefully crafted set of rules for safe-
guarding national security information and for. punishing any Mem-
ber or aide who violates those rules. ' Notably, the sanctions
which Congress has identified, by rule as applicable to
unauthorized disclosures by its own Members and employees,
namely "censure, removal from committee membership, or
expulsion . . . or removal from office"61/ -- are at least as
severe as those which the Executive Order governing classifica-
tion imposes upon Executive Branch officers or'employees and out-
side contractors. 62/
There has been no showing that these statutes and rules
do not adequately serve the government's interest in protecting
legitimate national security secrets. It is true that during the
joint hearings before the Congressional Iran-Contra Committees,
some administration witnesses, particularly Oliver North and John
Poindexter, asserted that they withheld information from Congress
-
out of a belief that Congress could not be trusted with sensitive
information. 63/ Of course, such declarations by former Executive
60/ Rules of the House of Representatives, Rule XLVIII;
Senate Manual, Standing Order 79.13.
61/ Rules of the House of Representatives, Rule XLVIII,
S 7(e); Senate Manual, Standing order 79.13, S 8(e).
62/ Exec. Order No. 12,356, S 5.4(c) ("reprimand, suspen-
sion without pay, removal, termination of classification author-
ity, loss or denial of access to classified information, or other
sanctions in accordance with applicable law and.agency regula-
tion").
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Branch officials do not of their own force' establish that the
existing legal structure is inadequate to serve the government's
legitimate interests in national security. The Iran-Contra Com-
mittees found that this rationale was a pretext for concealing
violations of law and policy and concluded that "Congress has the
capability of protecting secrets entrusted to it."64/ The Com-
mittees stated:
While Congress's record in maintaining
the confidentiality of classified information
is not unblemished, it is not nearly as poor
or perforated as some members of the NSC
staff maintained. If the Executive Branch
has any basis to suspect that any member of
the Intelligence committees breached secu-
rity, it has the obligation to bring that
breach to the attention of the House and Sen-
ate Leaders -- not to make blanket accusa-
tions. Congress has the capability and
responsibility of protecting secrets
entrusted to it. Congress cannot fulfill its
legislative responsibilities if it is denied
information because members of the Executive
Branch, who place their faith in a band of
international arms merchants and financiers,
unilaterally declare Congress unworthy of
trust.65/
A further indication that there is no compelling inter-
est to be served by the proposed amendment is that its coverage
is limited to members of Congress and their aides rather than to
64/ Id. See also Note, supra note 33, at 1209 ("Con-
gressmen have a good record for observance of security . . . of
classified information.").
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all persons with access to the information in question. Thus,
while a member who receives a "classified" briefing from an
Executives-Branch official could be criminally punished under the
proposed provision for any unauthorized disclosure, the Executive
Branch official himself would not be subject to this or any other
similar criminal provision.66/ This imbalance is. not explained
by any evidence that an unauthorized disclosure of information by
a Congressman is more damaging than such a disclosure of the same
information by an Executive Branch. employee. Nor, as-me-have
noted, is it explained-by any evidence that Senators and Repre-
sentatives and their staffs are less trustworthy recipients of
sensitive information than other people. The Supreme Court.has
previously held that precisely this sort-of "underinclusivenress"
in a statute that restricts speech demonstrates that:th'e statute
"provides only ineffective or remote support for the government's
purpose" and thereby "undermines the likelihood of a genuine
[governmental] interest."67/
In light of the foregoing considerations, it appears
that this proposal is not supported by a compelling government
interest sufficient under the First Amendment.
66/ Of course, other criminal statutes that have general
application and are not limited to the Legislative. Branch might
be applicable to unauthorized disclosures by either an Executive
or Legislative Branch official, but as noted above they do not
generally punish disclosures of classified information per se.
67/ FCC v. League of Women Voters, 468 U.S. at 396.
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2. The Amendment Also Appears to Be
Substantially Overbroad.
Any restriction on speech must be "narrowly drawn to
prevent the supposed evils."68/ Because the First Amendment
needs "breathing space," statutes which regulate expressive con-
duct must be voided entirely if, in addition to reaching
legitimately prescribed activity, they also reach a "substantial"
amount of protected activity.69/ The Supreme Court has
repeatedly made'clear that "even if some of the hazards at which
[a statute restricting speech] are sufficiently substantial," if
"the restriction is not crafted with sufficient precision to rem-
edy those dangers" the statute violates the First Amendment.70/
The proposed criminal nondisclosure provision appears
to be unconstitutionally overbroad because, in addition to
reaching disclosures which would significantly threaten national
security, it would punish a substantial amount of communication
that would create no such risk. This overbreadth arises from the
Executive Branch's classification system; which the proposed
amendment would mechanically adopt as the standard for
68/ Aptheker v. Secretary of State, 378 U.S. 500, 514
(1964) (quoting Cantwell v. Connecticut, 310 U.S. 296, 307
(1940)).
69/ Broadrick v. Oklahoma, 413 U.S. 601 (1973). See also
United States v. Robel, 389 U.S. 258, 266 (1967).
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determining which disclosures of information constitute a crime.
Both in theory and in practice, that system is not narrowly-tai-
lored to protection of national security. Thus, "[f]ar from -
providing the 'breathing space' that 'First Amendment freedoms
need . . . to survive,'" the criminal nondisclosure amendment
would, "criminalize[] a substantial amount of constitutionally
protected speech."71/
The basic criteria for classifying documents set-forth
in the current and previous executive orders appear to be. too
broad to serve as a standard for making expressive conduct a
crime. Executive Order 12,356, the current Administration's
order, directs that information shall be classified at the "Con-
fidential" level (the lowest. level of classification) if
"unauthorized disclosure" of the information "reasonably could be
expected to cause damage- to the national security." 22/ Once
classified, the executive order 'directs that information remain
classified. "as long as required-by national security considera-
tions."73/ Both courtsand commentators have suggested that. this
definition covers material the disclosure of which cannot be pro-
hibited. Thus, in McGehee v. Casey, the United States Court of
71/ City of Houston v. Hill, 107 S. Ct. at 2512 (quoting
NAACP v. Button, 371 U.S. 415, 433 (1963)).
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Appeals for the District of Columbia stated that an earlier, and
narrower, version of-the "confidential" standard "does, under
some constructions, touch constitutionally protected speech."741
It has indeed been suggested that even higher levels of classifi-
cation may reach protected speech because they "completely
ignore[] the elements of likelihood and-imminence" of harm.751
The provision permitting material to remain classified indefi-
nitely also raises serious First Amendment overbreadth prob-
lems.76/
Putting aside the question of whether the basic .
criteria for classification could on their face survive First
Amendment scrutiny, the historically pervasive problem of rampant
overclassification by Executive Branch officials appears to ren-
der the proposed criminal amendment substantially overbroad.
Recognizing "the well-documented practice of classifying as con-
fidential much relatively innocuous or noncritical information,"
the United States Court of Appeals for the District of Columbia
Circuit has stated: "we cannot conclude automatically that
74/ 718 F.2d 1137, 1146 (D.C. Cir. 1983) (analyzing. Exec.
Order No. 12,065, S 1-103).
75/ Nimmer, supra note 53, at 332. Professor Nimmer was
criticizing a predecessor to the current "Top Secret" standard.
However, he indicated that differences between the earlier stan-
dard and the current one were "insignificant". Id.
76/ See Comment, A Nation Less Secure: Diminished Public
Access to Information, 21 Harv. C.R.-C.L. L. Rev. 409, 434 n.122
(1986).
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revelation of all 'top secret' documents will endanger national
security." 77/ Similarly, nearly'twenty years ago -- when the
problem of. overclassification'was.by most accounts less serious
than today, Former. United Nations Ambassador and Supreme Court
Justice Arthur Goldberg told a Congressional Committee:
Anyone who has ever served our Government has
struggled with the problem of classifying
documents to protect national security and
delicate diplomatic confidences. I would be
less than candid if I did not say that our
present classification system does not deal
adequately with this problem. . I have
read and prepared countless thousands of
classified documents., In my experience, 75
percent of these documents should never have
been classified idn the first place; another
fifteen percent quickly outlived the need for
secrecy; and only about 10 percent genuinely
required restricted access over any
significant period of time.
As one scholar has argued, such overclassification appears to be
inevitable for a. wide variety of reasons:
77/ Halperin v. Kissinger, 606 F.2d 1192, 1204 n.77 (D.C.
Cir. 1979), aff'd by an equally divided court,452 U.S. 713
(1981).
78/ H.R. Rep. No. 221, 93d Cong., 1st Sess., at 40-41.
(1973) (emphasis added). An experienced Air Force classification
expert testified before, the same committee that "the disclosure
of information in at least 99'% of . . . classified documents
could not be prejudicial to the defense interests of the Nation."
Id. at 42. When Chief Justice Rehnquist'was Assistant Attorney
General and chaired a committee to review.the classification sys-
tem, he observed that virtually every member of his committee.
believed there was a tendency in the Government to overclassify..
U.S. Government Information Policies and Practices: The
Pentagon Papers Hearings Before a Subcomm. of the House Comm. on
Gov't Operations, 92d Cong., 1st Sess. Pt. 3, at 791.(1971).
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[t]here would be the.bureaucrat's usual- I
incentive to exaggerate the significance of
his own responsibilities by assigning high
security classifications to what he reviews;
the expert's-predictable bias.toward .
overemphasizing the considerations that flow
from that expertise; the government.
official's understandable tendency to dis-
count the broader. societal interest. in con-
trolling government; and the executive
officer's inevitable temptation to suppress
information that might prove embarrassing or
damaging to his conception of the national
interest. There would, in short, bean
inherent proclivity toward pervasive and
uncontrollable overbreadth in the classifica--
tion of official secrets.79/
While during the 1970s the problem of overclassification seemed
to abate somewhat,. the present Administration, under a new and
broader executive order, dramatically reversed that trend.80"
As a result of the proposed amendment's substantial
overbreadth, enactment of it would have a serious chilling effect
on communications of Members and their staffs, both among them-
selves and with their constituents. Out of a desire scrupulously
79/ Jeffries, Rethinking Prior Restraint, 92 Yale L.J. 409,
435 (1983).
80/ See English, Congressional Oversight of Security Clas-
sification Policy, 1 Government Information Quarterly 165,.167-68
(1984). As one measure of this trend, from 1979 to 1985, the
number of documents classified each year annually increased pro-
gressively from 14.8 million to 22.3 million -- a fifty percent
increase. See Information Security Oversight Office ("ISOO"),
Annual Report to the President 1980-1981, at l0; ISOO, Annual
Report to the President FY 1982, at 8; ISOO, Annual Report to the
President FY 1985, at 13.
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to obey the law and a wariness of even coming close to the line
between what is permissible and what is not, there is a risk that
targets of the prohibition would inform the public less
extensively about important business of the federal government.
There is also a risk that members of the intelligence. committees
would unnecessarily limit their private discussions with col-
leagues who are not on the Committees, who in turn. will
unnecessarily limit their consultations with their staffs. The
result could well be significantly less informed decision-making
by Congress, and a significantly less informed citizenry. It is.
precisely to avoid such harmful chilling of vital communication
activity that the First Amendment bars overbroad criminal stat-
utes.
In light of these serious constitutional.infirmities,
Congress has heretofore declined to enact an "Official Secrets
Act" of the sort that exists in Great Britain, and has stead-
fastly refused to make the mere act of disclosing classified
information a crime. Bills to prohibit generally the disclosure
of any classified information have been introduced numerous times
during the last 50 years, but all of them were rejected.81'
81/ Congress has consistently refused to enact. broad prohi-
bitions on the disclosure of "classified" information. For .
example, in 1946, a joint investigative committee urged Congress
to enact legislation prohibiting the disclosure of any classified
information. See Report of the Joint. Committee on the
Investigation of the Pearl Harbor Attack, S. Doc. No. 244, 79th
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While in rare instances Congress has enacted laws that prohibit
certain disclosures of "classified" or "restricted" information,
in each instance other substantive limitations narrowly confine
the scope of the information subject to the criminal ban. g2/ The
main obstacle to any broader use of the classification system in
the criminal arena, not'surprisingly, has been concern that doing
so would trample First Amendment rights. 83/
[Footnote continued from preceding page]' '
Cong., 2d Sess. 252-531 (1946). Congress rejected such a broad
prohibition, and instead enacted the much narrower S 798 of Title
18. Similar broad initiatives to criminalize all disclosures of
classified information were proposed in 1957, 1958, 1962, 1973
and 1983, but none was successful. See Senate Select Comm. on
Intelligence, Subcomm. on Secrecy and Disclosure, National Secu-
rity Secrets and the Administration of Justice, 95th Cong., 2d
Sess. 18 (Comm. Print 1978) (summarizing past legislative initia-
tives); H.R. 66 (1983).
82/ Section 798 of Title 18 criminalizes the knowing and
willful disclosure of specifically defined categories of classi-
fied information regarding communications intelligence. The
report on this legislation stated that this provision covers only
"a small category of classified matter, a category which is both
vital and vulnerable to an almost unique degree." H.R. Rep.
No. 1895, 81st Cong., 2d Sess. 2 (1950). Similarly, the Atomic
Energy Act of 1954 makes it a crime to reveal "restricted
data" -- defined as data concerning, inter alia, the "design,
manufacture, or utilization of atomic weapons" -- with an intent
to injure the United States. 42 U.S.C. SS 2014(y)(1), 2274, 2277
(1982). The Intelligence Identities Protection Act of,1982, 50
U.S.C. S 421 (1982), prohibits a person with authorized access to
classified information from disclosing any such information iden-
tifying a covert agent. Finally, 50 U.S.C. S 783(b) (1982) pur-
ports generally to prohibit any communications of "classified"
information, but only when the recipient is known or believed to
be a foreign agent or member of a Communist organization.
83/ See Report of the Senate Select Comm. on Intelligence,
Subcomm. on Secrecy and Disclosure, National Security Secrets and
the Administration of Justice, 95th Cong., 2d Sess. 18-19 (Comm.
Print 1978).
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in sum, the proposed amendment would prohibit disclo-
sure of a substantial amouht of information where no significant
national security interest in favor. of secrecy exists. Because
the provision would thereby sweep within its ambit a substantial
amount of constitutionally protected speech, it appears to vio-
late the First Amendment. 84/
D. The Criminal Prohibition Of Disclosure Of
The'"Substance" Of "Classified" Information
Creates A Further Chilling Effect.
The Supreme Court has repeatedly held that laws,.regu-
lations, and policies seeking to regulate speech on the basis of
its content must be clear and precise so that those subject to
regulation are given adequate notice, and so that the regulation
does not cause speakers to "steer far wider of the unlawful
zone."85/ In the First Amendment area, "the conduct to be pro-
hibited must be adequately defined by the applicable . . . law,
as written or authoritatively construed."86/ The Court held long
84/ This memorandum does not consider whether the existing
House and Senate rules barring disclosure raise overbreadth prob-
lems under the First Amendment. It should be noted, however,
that the rules are not criminal and that imposition of legisla-
tive discipline is not automatic. The rules indeed may not lead
to discipline at all in those situations where there has been no
disclosure of sensitive national security information.
85/ Speiser v. Randall, 357 U.S. 513, 526 (1958); see Hynes
v. Mayor of Oradell, 425 U.S. 610, 620 (1976); Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972).
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ago that "a governmental purpose to control or prevent activities
constitutionally subject to regulation may not be.achieved by
means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms. g7/ The Court has also stated:-
[S]tricter standards of permissible statutory
vagueness may be applied to a statute having
a potentially inhibiting effect on speech; a
man may the less be required to act at his
peril here, because the free dissemination of
ideas may be the loser.88/
The proposed criminal nondisclosure amendment may well
be unconstitutionally vague because it fails to draw a clear line
between those disclosures of information by a member or an aide
vagueness stems from the language of the amendment and from the
manner in which the Executive Branch classification system
operates. It is an additional flaw in the amendment, and a fur-
ther ground for Congress to reject it.
The vagueness problem starts with the amendment's use
of the term "substance." The proposed statute does not merely
prohibit disclosures of particular documents that are designated
classified. Rather, its coverage extends to disclosures of the
"substance" of any classified information that may have been
87/ NAACP v. Alabama, 377 U.S. 288, 307 (1964).
88/ Smith v. California, 361 U.S. 147, 151 (1959).
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conveyed to Congress either in writing or orally. This formula-
tion by itself creates significant uncertainty: while a person
who transmits a document marked "classified" to another person
may have certainty that he is thereby disclosing the "substance.".
of "classified" information, a person who transmits to another
person ideas or facts drawn wholly or partly from such a docu-
ment, using his own words, is likely to be much less certain.
The uncertainty introduced by the amendment's language
is compounded many times over by the fact that documents or
briefings which carry an overall designation of "classified"
almost invariably contain a range of "classified" and
"unclassified" information, some of which may be sensitive but
much of which is innocuous and perhaps already in the public
domain. While Executive Order 12,356 requires that "classified"
documents be "portion-marked" to designate which specific infor
mation is classified, 89/ this requirement is in practice fre-
quently ignored,901 may be waived by agency heads,911 and in any
event is wholly inapplicable to oral briefings, which are a fre-
quent vehicle for Executive Branch reports to Congress. As a
result, Members and other legislative officers and employees who
receive documents or briefings that the Executive Branch labels
89/ Section 1.5(b).
90/ See. Note, supra note 33, at 1200.
91/ Section 1.5(b)._
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.classified" can never be certain as to precisely what part of
what they have read or been told is in fact classified. Accord-
ingly, the potential targets of the criminal prohibition would be
forced to guess about its application and to engage in'communica-
tive conduct at their peril. 92/
`For. the foregoing reasons, we believe the proposed .
amendment to H.R. 3822 to criminalize disclosures of classified
information by Members or their staffs at best raises very seri-
ous constitutional questions, and, if enacted, would likely be
found to be unconstitutional.
Timothy B. Dyk
Patrick J. Carome
92/ The mere fact that documents and information relate to
national security or defense does not eliminate the importance of
a specific definition of. what is covered by the prohibition.
This much is clear from Gorin v. United States, 312 U.S. 19, 27-
28 (1941). There the Court acknowledged that the phrase.
"relating to the national defense" would raise serious vagueness
problems absent a specific scienter requirement not present in
the proposed amendment.
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AMENDMENT IN THE NATURE OF A SUBSTITUTE
To H.R. 3822 OFFERED BY MR. MCHUGH
STRIKE ALL AFTER THE ENACTING CLAUSE AND INSERT IN LIEU THEREOF:
3 8HOET TITLE
4 SECTION I. This Act may be cited as the 'Intelligence
5 Oversight Act of 1918
6 Sao. 2. Section 662 of the Foreign Assistance Act of
7 1961 (22 U.S.C. 2422) is hereby repealed.
8 SEc. S. Section 501 of title V of the National Security
9 Act of 1947 (50 U.S.C. 413) is amended by striking the lan_
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1 gunge contained therein. and substituting the tollo-,ving new
2 sections:
3 "GENERAL PROVISIONS
4 "SEC. 301. (a)- The President shall ensure that the
5 Select Committee on Intelligence of the Senate and the Per-
6 manent Select Committee on Intelligence of the House of
7 Representatives (hereinafter in this title referred to as the
S 'intelligence committees') are kept fully and currently in-
9 formed of the intelligence activities of the United States: in-
10 cluding any significant anticipated intelligence activities. as
11 required by this title: Provided. That nothing contained in
12 this title shall be construed as requiring the approval of the
13 intelligence committees as a condition precedent to the
14 initiation of such activities.
15 "(b) The President shall ensure that any illegal intelli-
16 gence activity is reported to the intelligence committees. as
17 well as any corrective action that has been taken or is
18 planned in connection with such illegal activity.
19 "(c) The President and the intelligence committees shall
20 establish such, procedures as may be necessary to cane out
21 the provisions of this title.
22 "(d) The House of Representatives and the Senate; in
23 consultation with the Director of Central Intelligence, shall
24 each establish, by rule or resolution of such House, proce-
25 dares to protect from unauthorized disclosure all classified
26 information and all information relating to intelligence
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:3
1 sources and methods furnished to, the intelligence committees
2 or to -Members of Congress under this title. In accordance
3 with. such procedures, each of the intelligence committees
4 shall promptly call to the attention of its respective House. or
5 to any appropriate committee or committees of its respective
6 House. any matter relating to intelligence activities -requiring
7 the attention of such House or such committee or
9 "(e) Nothing in this Act shall be construed as authority
10.,to withhold information from the intelligence `committees on
11 the grounds that providing the information'to the intelligence
12 committees would constitute the unauthorized disclosure of
13 classified information or information relating to intelligence
14 sources and methods.
15 ' "(f) As used in this section. the term 'intelligence activi-
covert action
16 ties' includes, but is not limited to. '_pe ' i 2 e -_t
17 defined in subsection 503(e).
18 "nnposTndo I TELLIQEN.C~yE A ..- MTIEs OTHER THAN
COVERT ACTION
19 orr) CT TIEG
20 "SM. 502. (a) To the extent consistent with due regard
21 for the protection against unauthorized disclosure of classified
22 information relating to sensitive intelligence sources and
or other exceptionally sensitive matters
23 methodi0the Director of Central Intelligence and the heads
24 of all departments, agencies, and other entities of the United
25 States Government involved in intelligence activities shall
(1)
26Aheen the intaliie'ni?. ~........:...ee a.n_ __~ _..
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4
_vert -_----
1 of all intelligence activities. other than a ;,;
2 defined in subsection 303(e), which are-the responsibility of.
3 , are engaged in by, or- are carried out for or on behalf ofi any
4 department. agency, or entity of the United States
5 Government. including any significant anticipated intelli-
6 gene activity and any significant intelligence failures;' and*'
9
10 -airelfurnish the intelligence committees any information or
covert
11 material concerning intelligence activities. other thin +p"
ial
actions
12 which is within their custody or control. and which
13 is requested by either of the intelligence committees in order
14 to cam out its authorized responsibilities.
COVE RT
15 "PRESIDENTIAL APPROVAL AND REPORTING OF
ACTIONS
not
17 "Snc. 503. (a) The President ma-vdNauthorize the con-
covert action
18 duct of a opeeial'hcurie.r by departments, agencies, or entities
unless
19 of the United States Government 9okAa he determines
action identifiable
20 such an to ty is necessary to support 4h* foreign policy
21 objectives of the United States and is=important to the na-
22 tional security of the United States, which determination
23 shall be set forth in a' finding that shall meet each of the
24 following conditions. -
25? "(1) Each finding shall be in writing, unless im-
28 mediate action by the ? United qt t.. ;, wn.iryi and
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403
1 time does not permit the preparation of a written iind-
2 ing, in which case a written record of the President's
3 decision shall be contemporaneously made and shall be
4 reduced to a written finding as soon as possible but in
5 no event more than forty-eight hours after the decision
6 is made: Except as permitted by subsection (a)(1)
(.of this section, a covert
7 "(2 X'finding may not authorize or sanction
actions actions
8 .epee. or any aspect of such -aetiwties. which
9 have already occurred:
10 "(3) Each finding shall specify each and even-. de-
ll partment. agency, or entity of the United States Gov-
12 ernment authorized to fund or otherwise participate in
actions
13 any significant way in such Provided. That
14 any employee. contractor, or contract agent of a de-
15 partment. agency, or entity of the United States Guy-
16 ernment other than the Central Intelligence Agency di-
covert action
17 rected to participate in any way in a vitr
18 shall be subject either to the policies and regulations of
19 the Central Intelligence Agency, or to written policies
20 or regulations adopted by such department, agency or
21 entity, in - u?lt - ;th the ^? _ f A i T
22 ialligesee, to govern such participation;
23 "(4) Each finding shall specify whether it is con-
24 templated that any third party which is not an element
25 of, or a contractor or contract agent of, the United
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1 States Government. or is not otherwise cubiect :o
2 United States Government policies and --regulations...
3 will be used to fund or otherwise participate in any sig-
4 action
nificant nay in the - '- -'~4 +4 concerned. or he
covert action
5 used to undertake the : p ciat'^ -~'- iri 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 iniorma-
or other exceptionally sensitive -attars.
11 tion relating to sensitive intelligence sources and method's
12 the Director of Central Intelligence and the heads of all de-
13 partments. agencies, and entities of the United States Gov-
covert action
14 ernment involved :in a epee shall keep the intelli-
cover.;
15 gence committees fully and currently informed of all ip?ciul
actions
16 met vibes 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 or ma-
covert actions
20 terial concerning speeia ativides 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 committees in order to carry out its
24 authorized responsibilities.
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I "(cXl) The President shall ensure that any finding ap-
_,, proved pursuant to subsection la) shall be reported ? to the
3 intelligence committees as soon as possible after such approv-
cover- action
4 al and prior to the initiation of the specie(-^aesi> s authorized
5. by the finding. Provided. That if the President determines it
6 is essential to limit access to the finding to meet eatraordi-
7 nary circumstances affecting vital interests of the United
8 States, such finding may he 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
c
19 security interests of the United States to initiate a before the notice required by paragraph (1) can be
action
21 given, such may be initiated without such notice.
22 "(3) The President shall ensure that notice of a AL"
action
23 limity undertaken pursuant 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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aver- _zti_-
1 event later than forty-eight hours" after the
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 n hr 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 fed in subsection (c), are notified of any significant change in
covert action
10, a preciously-approved or any significant un-
"indina
11 dertaking pursuant to a previously approved 4, in the
12 same manner as findings are reported pursuant to subsection
13 (c).
17
18 to my other deponmenj 6. .__ _r IL -
19
20
21 6e United Stnes GOMIMent is not 2"Wellb Of mime"!
22 Bred subfidi. wiA ~IpN i11 ?u t
23
24 ft'--des ewl- _1
25
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"(e) The term 'covert action' means an activity or
activities conducted 3y an element of the united States
Government to influence political, economic, or military
conditions aoroaa so that the role of the united States
Government is not intended to be apparent or acknowleo_eo
puolicly, out does not include--
"(1) activities the primary purpose of which is to accuire
intelligence, traditional counterintelligence activities,
traditional activities to improve or maintain the
operational security of United States Government programs,
or administrative activities;
"(2) traditional diplomatic or military activities or
routine support to sucn activities;
"(3) traditional law enforcement activities conouctec oy
United States Government law enforcement agencies or
routine support to sucn activities; or
"(4) activities to provice routine support to the evert
activities (otner tnan activities oescrioeo in paragra:hs
(1), (2), or (3)) of otner Uniteo States government
agencies aoroao."
1 Preeeaees. A request by any agency or department 4 the
zovera yea:
2 United States to a foreign een *tr.' or a private citizen to
covert action
3 conduct a opeeia4et ' on behalf of the United States shall
covert action
4 be deemed to be a e"eiage.i iw.
covert action
3 "(f) No epeeia~raee? i may he conducted if it is intend-
6 ed to influence United States political processes. Public opin-
ion, policies. or media.**.
SEC. 4. Section .302 of title C of the National Security
9 Act of 1947 650 i'.S.C. 414) is redesignated as section 04
10 of such -pct. and is amended by deleting "501" in subsection
11 ta)(2) of such section and inserting in lieu thereof "303%
12
13 in tie he gef Fu '_ and by adding the
14 following oem- :ubscotion ":
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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 ay be directed to be ex-
covert action te
1S pended, for any sgeeii+q, 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.".
-+~ See Insert B
22 83c. 5. Section:503 off: title V of the National. Security
23 Act of 1947 (50 U.S.C. 415) is redesignated as' section 505
24 of such -Act, `ad subsection (aX1)-of such section is amended
Insert 8
"(e) Except as provided in Section 204(o) (aopearing under
the neaoing 'General Provisions-Department of .:ustice') of
the Department of Justice Nppropriations Act, .988
(containeo in P.L. 100-202) and in Section 423 of Title .0,
united States Code, funds availaole to an intelligence
agency wnich are not appropriated funds may me ooiigateo or
expended for an intelligence or intelligence-related
activity only if they are used for-activities reported to
the appropriate congressional committees pursuant to
procedures jointly agreeo upon oy sucn committees, tine
Director of Central Intelligence or tie Secretary of
Defense, wnicn identify types of activities for wnicn
nonappropriated funds may oe expended ano under what
circumstances an activity must me reported as a significant
anticipateo intelligence activity oefore sucn funds can me
expended."
the anticinaced :-ansfer acv `:;;a; "ear -?
1 by adding. "ov~tty aggregation of defense articles or defense
2 services." after "service".
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APPENDIX 12
74'ak 964""
Hon. Dante B. Fascell,,Chairman
Hon. William S. Broomfield, Ranking Minority Member
Committee on Foreign Affairs
United States House of Representatives
Washington, D.C. 20515
Dear Chairman Fascell and Rep. Broomfield:
The Hale Foundation appreciates the opportunity to submit its
views on H.R.3822, proposed legislation relative to intelligence
oversight. The Hale Foundation, designated a 501(c)(4) organization
under the Internal Revenue Code, advocates a strong United States
intelligence capability. It represents many thousands of Americans in
all parts of the country to that end. The Hale Foundation recieves no
government support of any kind. For my part, I have spent almost 25
years in the intelligence profession, mostly as an intelligence
operations officer, mostly overseas. I left government service as a
Deputy Assistant Secretary of State, Bureau of Intelligence and
Research.
The Hale Foundation strongly supports the principle of covert
action, or "special activities," which in American history date from
at least the Revolutionary War. Captain Nathan Hale, after whom The
Hale Foundation is named, in addition to his more famous intelligence
activities, was widely acclaimed in the Continental Army for his
leadership in daring and dangerous special operations. Without
successful covert action in conjunction with its European allies, our
Republic probably would have failed to survive in its struggle for
independence.
The Hale Foundation approves of the purpose of H.R. 3822 to
consolidate the provisions of intelligence oversight by amending the
National Security Act of 1947 to repeal the Hughes-Ryan language in
the Foreign Assistance Act of 1961. By placing the substance of the
latter section in an amended National Security Act, the Congressional
intelligence committees apparently. would acquire jurisdiction in
intelligence matters to the exclusion of any other committee. Hale
believes that the two legislative intelligence committees should have
such exclusive jurisdiction. In this connection, The Hale Foundation
supports the establishment of a Congressional joint intelligence
committee along the lines of H.J. Res. 48 to consolidate oversight
and improve security, essential to the effective conduct of U.S.
foreign affairs.
?TIIF?
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410
On the other hand,. The Hale Foundation opposes language that
would impose new and, in Hale's opinion, inflexible restrictions on
the Executive Branch regarding deferral of congressional notifcation
of covert action. Hale believes that such restrictions would imperil
the success of important and particularly sensitive covert action
operations, a danger especially grave where the lives of intelligence
personnel and agents. are at risk. Some covert action requires a long
gestation period-, during which secrecy is essential. A requirement
that a president's decision to authorize a covert action (and his
subsequent written finding to that effect) must be reported to
Congress within a strictly delimited time would amount effectively in
some important cases to prior notice, a condition Hale strongly
opposes. Such a strict requirement raises the constitutional question
of presidential prerogative. The standard of "timely fashion," a
reasonable one in the view of The-Hale Foundation, responds-to the
constitutional requirements of both branches of government.
As a practical. matter, as Executive Branch testimony before the
Congress has demonstrated, most covert action operations have been
reported in advance to the appropriate. committees or the alternate
selective group of Congressional leaders (the so-called "gang of
eight"). Hale believes, nonetheless, that it is essential to maintain
flexibility on the question of deferral in unusual cases.
The Hale Foundation agrees with Judge Griffin Bell, former
Attorney General of the United States, when he testified in 1980 as
follows on proposed restrictions on covert action: "To the.extent
these provisons might serve to prevent the President and senior
intelligence officials from carrying out vital activities with the
requisite dispatch and secrecy, I believe them to be unwise,
unnecessary and perhaps unconstitutional. From the earliest days of
this Republic, it has been recognized that the foreign affairs
function is necessarily the primary province of the Executive. ...The
legislative function must be a reasonable one, adding its strengths
to the process while not sapping the strengths of the Executive.
There should be a continuing dialogue between the Executive and the
Congress. But the Congress should not, in effect, be inserted into
the councils of the Execut.ive. This should alter fundamentally the
checks and balances relationship intended by the framers of the
Constitution." (Hon. Griffin Bell, testimony on S. 2284, 1980, pages
326-7.)
Finally, The Hale Foundation believes that, however worded, any
legislation with respect to Executive Branch reporting to-the
Legislative Branch on either intelligence collection operations or
covert action should retain the stipulations. of the National Security
Act of 1947 that such reporting be "consistent,.with all applicable
authorities and duties, including those conferred by the Constitution
...and... with due regard for the protection from. unauthorized
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disclosure" of sensitive classified information.(Sec. 501. 50
U.S.C.413) The loss to either collection operations or to covert
action of these protections would, Hale believes, seriously damage
United States intelligence capabilities with respect to cooperative
foreign governments and endanger the lives of unilateral foreign
assets and American intelligence personnel, themselves.
Thank you for considering the views of The Hale Foundation on
the proposed legislation.
Sreiy,
Lawrence President
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