How the White House Killed Congressional Oversight of Covert Activities

In 1987, Ronald Reagan received tentative praise for strengthening oversight of intelligence activities and covert actions in the wake of Iran-Contra. After negotiating with Congress, the President agreed to a new set of standards and began working on officially implementing them. Among other things, he would be required to notify the Congress of covert activities within no more than two working days. This was partially done to prevent something like the Iran-Contra scandal from happening again. A declassified memo from the President’s lawyer reveals that the agreement, letter to Congress and subsequent National Security Decision Directive were toothless mirages. These political maneuvers were meant to reassure Congress and the public without closing the loopholes that helped spawn the Iran-Contra scandal.

In theory, there’s long been a requirement for the President to authorize covert activities through Presidential Findings and to then keep Congress informed. In practice, these policies had allowed for covert action and intelligence activities to be undertaken without Congressional notification or oversight. These loopholes allowed the President, CIA and the NSC to sidestep the reporting requirements in their support of the Contras. The passage of the Boland Amendment(s) served only to drive this support further into covert territory as the Congress was cut completely out of the loop. After this was eventually discovered, Congress and the American people demanded more transparency. However, the Reagan administration remained determined to maintain their authority to bypass the resulting guidelines, and schemed to undermine the restrictions through political and legal maneuvering.

Iran-Contra and The Hughes-Ryan Loophole

Following the scandals of the Nixon administration, including Watergate and the wars in Southeast Asia, the public demanded more accountability. Congress agreed and passed new requirements for oversight. The Hughes-Ryan Act required that covert actions be authorized by Presidential Findings and that Congress be notified. However, this didn’t prevent the President from including a determination in one of his findings that Congress not be notified of CIA arms sales to Iran in part of what became the Iran-Contra scandal. According to Reagan’s lawyers, it also allowed for the President to opt-out of Congressional notification for “activities intended solely for obtaining necessary intelligence. This is one of the loopholes that allowed the Reagan administration to delay their notifying Congress about certain aspects of the Iran-Contra scandal, as the law didn’t specify any time limit on notification.

hughes-ryan-loophole

The Oversight Requirement That Wasn’t

As the Iran-Contra hearings neared their end, Senator Boren, Chairman of the Senate Intelligence Committee, wrote President Reagan a handwritten letter. In it, he pleaded with the President over the issue of accountability in both foreign policy and covert action. The letter, dated four days before the Iran-Contra hearings officially closed, helped spurn the Reagan administration to take action before the hearings ended and either Congress or public opinion could force their hand. Within two days, a new Executive Order had been drafted and was being shown to the Senate and House Intelligence Committees. On the surface, the Executive Order would have created new, specific requirements for Congressional notification. However, in a letter written the day before the Iran-Contra hearings closed, Reagan’s lawyers insisted these requirements didn’t actually exist.

While the draft of the Executive Order, which never became official, remains classified, the White House memo discusses it and quotes several important parts. Notably, the Executive Order required Congress to be notified ahead of time except in the “extraordinary circumstances” in which case Congress would be notified within two working days. The President’s legal staff believed that they had found a way to completely circumvent this requirement with a seemingly innocuous passage. “Nothing in any provision of this order shall be construed to limit the President’s exercise of constitutional authorities and duties pertaining to foreign affairs or the security of the United States or of its citizens.” According to a letter written by Arthur B. Culvahouse, Counsel to the President, this provision had a specific, hidden purpose. It was meant to “reserve the President’s constitutional right to defer notice.”

hidden-deferment

However, the administration’s lawyers still had some concerns. The reservation was “sufficient from a technical point of view, but is so general and unspecific that there is a substantial concern that the President could be accused of bad faith.” One proposed solution to this was to accompany the Executive Order with a letter from the President, clarifying what it actually meant. The understanding from Colin Powell was that Senator Boren and others would object “on political grounds.”

Demeaning The President

The White House lawyers objected to the drafted Executive Order on another set of grounds that it was demeaning to the President. According to the letter penned by Culvahouse, the Executive Order “constituted the President’s giving orders to himself.” The staff saw this as “unseemly” and an “infringement” on the President’s authority. Most importantly, they felt that as a matter of precedent it was unwise.

whats-demeaning-of-this

Preempting Legislation

One of the most important aspects of the letter is in the Recommendations section, which highlights the administration’s priorities and political maneuvering. According to Culvahouse, the Executive Order needed to be assessed in light of the possibility that it could prevent Congress from passing legislation requiring prior notice or notice within 48 hours. The wording of the legislation would likely not provide the administration with the technical maneuverability they sought to maintain.

If such legislation is likely, the Executive Order could well be an attractive compromise and preemptive measure. If such legislation is not likely, then the problems presented by the Executive Order could outweigh its usefulness.

No such Executive Order was issued. Instead, President Reagan wrote a letter to Congress with the help of National Security Advisor and former CIA Deputy Director Frank Carlucci.

Reagan’s Letter

The letter Reagan wrote to Congress was based off of his discussions with Frank Carlucci and included the essence of what would have gone into the Executive Order. Unlike the Executive Order, however, this letter had no real binding authority. The letter read, in part:

Specifically, I want to express my support for the following key concepts recommended by the committee:

1. Except in cases of extreme emergency, all national security ”findings” should be in writing. If an oral directive is necessary, a record should be made contemporaneously and the finding reduced to writing and signed by the President as soon as possible, but in no event more than two working days thereafter. All findings will be made available to members of the National Security Council (N.S.C.).

2. No Finding should retroactively authorize or sanction a special activity.

3. If the President directs any agency or persons outside of the C.I.A. or traditional intelligence agencies to conduct a special activity, all applicable procedures for approval of a finding and notification to Congress shall apply to such agency or persons.

4. The intelligence committees should be appropriately informed of participation of any Government agencies, private parties, or other countries involved in assisting with special activities.

5. There should be a regular and periodic review of all ongoing special activities both by the intelligence committees and by the N.S.C. This review should be made to determine whether each such activity is continuing to serve the purpose for which it was instituted. Findings should terminate or ”sunset” at periodic intervals unless the President, by appropriate action, continues them in force.

6. I believe we cannot conduct an effective program of special activities without the cooperation and support of Congress. Effective consultation with the intelligence committees is essential, and I am determined to ensure that these committees can discharge their statutory responsibilities in this area. In all but the most exceptional circumstances, timely notification to Congress under Section 501(b) of the National Security Act of 1947, as amended, will not be delayed beyond two working days of the initiation of a special activity. While I believe that the current statutory framework is adequate, new executive branch procedures nevertheless are desirable to ensure that the spirit of the law is fully implemented. Accordingly, I have directed my staff to draft for my signature executive documents to implement appropriately the principles set forth in this letter.

While the President must retain the flexibility as Commander in Chief and chief executive to exercise those constitutional authorities necessary to safeguard the nation and its citizens, maximum consultation and notification is and will be the firm policy of this Administration.

Sincerely,
RONALD REAGAN

Notably, the letter closed with the same sentiment of maintaining the President’s flexibility and authority to deviate from the notification requirement he had outlined. However, even if the President were to notify Congress within two working days, it would be a loss for oversight. As Professor McCormick noted, “Congress would be kept in the dark until it is too late to have much effect on policy decisions. Such an outcome would represent a loss for both the executive and legislative branches, and ultimately for effective U.S. foreign policy.”

While some praised this, many in Congress were unhappy. One House official explained that it needed to be put into law. “The ink isn’t even dry on the Iran-contra hearings and they’re already trying to get it [broad authority over covert activities] back.” Ultimately, the letter proved to be an insufficient measure. The Reagan administration, however, still refused to issue an Executive Order. Instead, they issued a “Decision Directive” that set the administration official policy without setting precedent. It left open the very loophole that Congress was desperately trying to close and that led to the Iran-Contra scandal.

Great Expectations

On October 15, a month and a half later, the Reagan administration issued National Security Decision Directive #286. Labeled “Approval and Review of Special Activities,” the Decision Directive has only been partially declassified. It implemented many of the requirements that the President had discussed, without creating a binding precedent for either himself or future Presidents. According to the Directive, the President was required to sign a Presidential Finding ahead of time or within 48 hours. However, there was no requirement to provide Congress with prior notification – only an “expectation.”

While the document states that Congress has an “expectation of prior notification,” it also states that this expectation doesn’t apply in “extraordinary circumstances.” These circumstances are entirely unspecified, and the Decision Directive explicitly allows the President to preclude Congressional notification at will.

notification-or-not

Notification Has Been Vetoed

Ultimately, Congress was not satisfied. Several attempts were made to put the requirement into law. In 1991, the Intelligence Authorization Act included such a measure. It would have required President Bush to notify Congress within 48 hours of any covert action. President Bush vetoed the bill over that requirement, and the Congress was unable to obtain a veto override. Instead, a “compromise” was reached – Congress would be notified “in a timely fashion.” This was the exact requirement that was already in place with the Hughes-Ryan Act and which had allowed the Iran-Contra scandal to happen. Although Bush denied that he had known about Iran-Contra, his diaries revealed that he was “one of the few people that know fully the details.” In the final days of his Presidency, he pardoned those that had been indicted for the Iran-Contra scandal.

It appears that the current legislation still uses this language. One recent bill appears at first glance to prevent this for Special Access Programs, but a close reading reveals that it merely places limits on fund appropriations. This type of loophole has been previously and egregiously circumvented by officials, as it was in the Iran-Contra scandal. The question is how long before we find that history is repeating itself?

 

You can read a copy of the White House memo below.

https://archive.org/stream/WhiteHouseMemoOnCongressionalNotificationOfCovertAction/Covert%20Action%20Agreement%20RR-COS-BakerH-02-05?ui=embed#mode/1up

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