William P. Barr Defended Expanded Presidential Authority and Limiting Notification of Congress about Certain Covert Operations during Iran-Contra Affair
Washington, DC, February 7, 2019 – Attorney-General nominee William P. Barr figured prominently in arguments to limit CIA responsibility to provide notification to Congress about covert actions during the 1980s, according to a review of declassified materials published today by the National Security Archive at the George Washington University. As the Iran-Contra scandal played out, Barr, who held senior posts at the Justice Department, provisionally supported the idea of the president’s “virtually unfettered discretion” in foreign policy and downplayed Congress’s power of the purse, asserting it was “by no means limitless.”
The issue of notification of Congress about imminent clandestine activities was at the heart of the Iran-Contra scandal when President Ronald Reagan and CIA Director William Casey specifically ordered that lawmakers be kept in the dark about the infamous, covert arms-for-hostages deals with Iran.
Barr was by no means alone in pushing these views, the documents show. Other notable proponents during the Iran-Contra aftermath included then-Congressman Dick Cheney and John R. Bolton, who was also at the Justice Department. After Cheney became defense secretary he continued to press for extraordinarily broad Executive Branch authority, advising then-President George H. W. Bush to veto the Senate’s intelligence appropriations bill on the grounds it “attacked” presidential prerogatives – resulting in the only known such veto since the CIA’s creation.
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by John Prados and Arturo Jimenez-Bacardi
There is no wonder that CIA Director Gina Haspel has the leeway to fail to appear before Congress to provide full detail on her, and her agency’s, conclusions regarding the 2018 murder of journalist Jamal Khashoggi in the Turkish consulate at Istanbul. Presidents Ronald Reagan and George H. W. Bush laid the groundwork for this in the wake of the Iran-Contra Affair. Same thing for the CIA keeping secret the details of its torture and black site programs during the George W. Bush administration. These kinds of information and notification issues are at the heart of congressional overseers’ ability to monitor the CIA and other intelligence agencies. The Executive—the White House, the CIA, other federal agencies—gained much of that leeway at an unlikely time, at the height of the Iran-Contra Affair from 1986 to 1992, when the CIA was clearly in breach of agreed procedures and reforms were patently necessary. The way this took place involves several of today’s key Washington figures, including William P. Barr, Dick Cheney, John R. Bolton, and the first President Bush.
In the 1980s, the Reagan administration’s secret war in Nicaragua involved repeated breaches of government procedures for control of—and congressional notification of—intelligence covert operations. More than other agency operations, Nicaragua would become the locus for testing the limits because Congress made greater efforts to restrict the scope of CIA activities in the Central American state, the zeal of Reagan’s secret warriors to carry out the covert projects there, and the revelations of activities that breached agreements between CIA and its congressional overseers.[1]
These events unfolded in the context of a process of defining and routinizing procedures for intelligence oversight. The Hughes-Ryan Amendment to the Foreign Assistance Act of 1974 required presidents to justify every covert operation by means of a “finding” more formally called a Memorandum of Notification, and to supply that to eight congressional committees. The Church and Pike investigating committees, and the official investigations of the “Year of Intelligence”—1975—made additional recommendations for formal oversight mechanisms. The system of intelligence oversight committees in Congress came about in response.
A major enterprise of the Carter administration (1977-1981) was to incorporate reforms in “charters” for the intelligence agencies. Rank-and-file intelligence officers, and many former officials, opposed putting charters in legislation, and no law of this type passed. Instead Congress enacted the Intelligence Oversight Act (S.2284) in September 1980, reducing a 263-page draft intelligence charter to a 10-page text.[2] The law required that CIA and other agencies keep the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI) “fully and currently informed” on all “significant anticipated intelligence activity,” including covert operations, while eliminating a previous requirement for the agencies to inform a much wider range of congressional committees.[3] The measure passed the Senate 89 to 1. The lone dissenter, William D. Proxmire (D-WI), declared that that reporting requirement represented the largest loophole in the bill, one that “really ends any kind of effective reporting requirement.”[4]
This law represented a direct response to the Carter administration’s failed April 1980 hostage rescue mission in Iran, where President Carter had approved going ahead with the mission while not informing Congress. But that was not the first time. Then-CIA director Stansfield Turner, testifying before the HPSCI on the proposed intelligence charter, acknowledged that the extraction from Iran of six Americans who had been trapped there by the Iranian Revolution had also initially been withheld from Congress.[5] The years of the Reagan and Bush administrations would feature a struggle to define “full and current,” as well as precisely what “significant” activity meant.
Much of the dispute would be fought out over the agency’s paramilitary project aimed at Nicaragua. There were repeated excesses in what the CIA did compared to what it had reported to the congressional intelligence committees. One of the most controversial instances of the notification dispute concerned CIA’s mining of and attacks on Nicaraguan harbors in 1983-1984, where the presidential finding had indicated no Americans were to be involved, misleading Congress, whereas CIA officers led the attacks. On June 6, 1984, CIA Director William J. Casey and SSCI Chairman Senator Barry Goldwater (R-AZ) signed an accord specifying changing conditions that would require re-notification of Congress, even in regard to ongoing covert operations. With respect to the timeliness criteria the accord declared: “notification . . . will be provided to the SSCI as soon as practicable and prior to implementation of the actual activity.” The accord also stipulated the CIA would create mechanisms to supply this information, and periodically review ongoing operations with the SSCI.[6]
President Reagan capped this action by issuing a directive governing covert operations in January 1985. The order provided that all covert operations be authorized by written finding, that actions be reviewed periodically, and that CIA be the normal implementing agency. The directive acknowledged the responsibility to notify Congress.[7]
Unknown to congressional participants, the CIA and National Security Council (NSC) staff were soon engaged in procuring and shipping arms to Iran as part of what became the Iran-Contra Affair. No presidential finding had been presented. Nor was any finding reported—or even drafted—that authorized taking money from the arms shipments and giving it to the Nicaraguan Contras. In November 1985, the CIA role deepened when it directly provided air transport for an arms shipment to Iran. Deputy Director of Central Intelligence John N. McMahon discovered days later that no finding at all supported these activities. He ordered a finding be prepared, even if it only retroactively justified what had been done. At least two revised presidential findings on Iran followed. The November 1985 draft was reportedly signed hastily by the president, and two versions in January contained instructions to continue under NSC staff auspices with CIA help. The final version was approved on January 17, 1986. Then it went into the secret vault, not briefed to Congress.[8] Existence of these presidential findings only became known after revelations in November 1986 about the Iran arms sales and the diversion of money from them to fund CIA-supported Nicaraguan rebels.
When that happened Executive-Congressional relations had already become strained. In April 1986, SSCI Vice Chairman Senator Patrick J. Leahy (D-VT) declared to intelligence retirees that the Reagan administration’s propensity for covert operations had worsened its relations with Capitol Hill.[9] Meanwhile SSCI leaders sought a review of the June 1984 SSCI-CIA agreement, held in June 1986. Committee Chairman David Durenberger (R-MN) and his vice chairman, Pat Leahy, agreed with Director Casey that the system seemed to be working well. Their updated document provided that notifications would make note of “any instance in which substantial nonroutine support” is provided.[10] A few months later, the Senate Foreign Relations Committee chairman, Jesse Helms (R-NC), offered an amendment that would have prohibited any CIA paramilitary project that cost more than $20 million.
Disclosure of the Iran-Contra secret shipments quickly led to questioning of the intelligence notification rules and to admissions that presidential findings had been kept from Congress for a lengthy period. At a November 19, 1986, press conference defending his Iran-Contra actions, President Reagan asserted he had the right to defer reporting to Congress until he deemed it proper.[11] But the press soon discovered that Iran-Contra secrecy involved not only keeping Congress in the dark but also various administration insiders, in contravention of Reagan’s own NSDD-159 of January 1985. The public reaction to the news, quite negative, made it politically impossible to sustain the White House claim to full control over notification of covert operations.
That political reality did not restrain some, however. At the Department of Justice the chief of the Office of Legal Counsel, Charles J. Cooper, marched in the opposite direction. Cooper, who had been part of Attorney General Edwin Meese’s internal Iran-Contra inquiry, here leaned over backwards to shield the president (Document 1). He argued that notice in a “timely fashion” could extend to the moment when outcomes of diplomacy or covert operations could not be affected by notification. The Cooper paper fails to define what constitutes “a reasonable moment.” Given the president’s “constitutional independence and authority in the field of foreign relations” that would give a president “virtually unfettered discretion” to decide when “timely” standards were met.
Cooper’s position by no means held sway within the administration. At this time Robert M. Gates had been nominated to follow Bill Casey, who suffered from a brain tumor, as CIA director. Gates told senators at his nomination hearing that notification should be in advance except for emergencies, and that “timely” information ought to come within several days. Gates intimated he might resign if ordered to keep information from Congress for more than a few days.[12] Gates failed to obtain confirmation due to his links to Iran-Contra. The next nominee was William B. Webster, the FBI director. Webster told his nomination hearing that a retroactive finding would be illegal, and agreed with SSCI Vice Chairman William S. Cohen (R-ME) that if the Iran initiative had been notified to Congress the Iran-Contra affair would never have happened, and he sided with Gates’s definition of “timely.”[13]
Even as the Webster hearings proceeded, the other shoe fell on CIA notification. In the House of Representatives, HPSCI Chairman Louis Stokes (D-OH) and member Edward P. Boland (D-MA) introduced legislation that specified a 48-hour limit to the time the Executive Branch had to inform congressional oversight committees of CIA operations. Speaker of the House Jim Wright (D-TX) became a co-sponsor. Former CIA directors Stansfield Turner and William E. Colby both opposed the bill, H.R.1013.[14] The administration’s reaction came in the form of a June 9, 1987, letter to an HPSCI subcommittee leader from John R. Bolton, then assistant attorney general for legislative affairs (Document 2). Bolton objected the projected law would intrude on a president’s foreign policy powers, a constitutional defect, and that it failed to take into account the procedures set in the Intelligence Oversight Act of 1980.
Administration efforts to avoid more stringent reporting requirements on CIA operations continued to run afoul of the explosive revelations of Iran-Contra. At the end of February 1987 a presidential commission, the Tower Board, rendered its report on Iran-Contra, picturing an out-of-control NSC staff, an excessive use of the CIA, and a disdain for reporting requirements.[15] This was before a joint congressional committee to investigate Iran-Contra had even begun its public hearings. Among the board’s recommendations, said Frank C. Carlucci, appointed national security adviser after the firing of Admiral John Poindexter, was a reduction in the reliance upon covert operations.[16] Then the televised congressional hearings began. Witnesses described a welter of extra-legal and skirt-the-boundaries initiatives, from the arms sales to solicitations of cash from foreign countries—Saudi Arabia being the biggest donor—to pay for the Nicaraguan secret war, which Congress had defunded. In mid-July, Admiral Poindexter testified, insisting the NSC staff had been entirely justified in keeping secret the Iran-Contra moves secret, and that most people agreed with him.[17]
Even from President Reagan’s perspective, continuing intransigence on intelligence oversight had become politically unsustainable. On August 7, Reagan unveiled a new approach, complete with a fresh National Security Decision Directive and letters to senior members of the HPSCI and SSCI (Document 3). While Reagan mentioned a 48-hour notification window, “in all but the most exceptional circumstances,” he stood firm on the argument that in his constitutional role as commander-in-chief he would exercise flexibility in interpreting that requirement. Reagan also used that timeframe in connection with creating a written record of any oral finding.
Senator Cohen of the SSCI called President Reagan’s invocation of constitutional powers a loophole “which will be subject to serious debate.”[18] Cohen had witnessed the effects of poor CIA notification up close. On September 8, 1983, he and Senator Gary Hart (D-CO), with a Marine escort officer, had been flying to Managua, Nicaragua, in an Air Force courier plane, when Nicaraguan rebels backed by the CIA bombed the airport they were bound for. Now Senator Cohen followed the HPSCI example and in September 1987 filed a bill, S.1721, that made the 48-hour notification a matter of law.
The next act in this tale of disappearing restraints is the story of what happened to the Cohen legislation. Committee Chairman David Boren (D-OK) sided with Senator Cohen in seeking to move the bill quickly, and it was slated for public hearings in November 1987. At the second session, on December 11, Louis Stokes of the HPSCI, with the committee’s manager for its own notification bill, Matthew McHugh (D-NY), testified on their proposals versus the Senate’s. McHugh explicitly cited the Bolton letter (Document 2) and noted that, except for Bolton and the Justice Department, no one had found fault, constitutional or otherwise, with the 48-hour notification limit. The HPSCI had gotten opinions from constitutional scholars Lawrence Tribe of Harvard, Louis Henkin of Columbia, and William Van Alstyne of Duke Law School.[19]
Charles Cooper testified at this hearing too. His draft statement was prepared at the Justice Department in November (Document 4). The draft repeated and extended Bolton’s argument, and tried to establish a distinction between Congress as a “legislative,” and the Executive as an “administrative” body, arguing in consequence that the oversight committees had no need of detailed knowledge of all intelligence activities within a fixed time period. Congressional demands for notification thus transcended its legitimate role. At the hearing, Cooper, who gave the senators a copy of his earlier memorandum of law (Document 1), offered a weaker argument than in his draft statement, but sought in oral testimony to adhere to the wider claims of authority. The Justice Department lawyer cited Article 2 of the Constitution to table the president’s commander-in-chief powers, as had Ronald Reagan in his August declaration. Senator Cohen (and others) challenged Cooper’s assertions. When pressed, Cooper added executive privilege as justification for a president’s decision to withhold information from Congress. Senator Cohen asked, “How are we to know that it’s a proper exercise of his exclusive powers if we’re never been told about it?”[20]
Frank Carlucci, now secretary of defense, and State Department aide Michael Armacost also appeared before the committee to argue against the notification provision. Carlucci had been national security adviser during the Tower Board investigation, and a mover of the Reagan covert action reforms of August 1987. He claimed the necessary reforms had already been accomplished while he headed the NSC staff, and warned the president might veto the 48-hour notice bill. Against them, Clark Clifford, a figure in the creation of the CIA during the Truman administration, argued that a 48-hour window would help prevent outrageous excesses like Iran-Contra. Most interesting was the testimony of John McMahon, former deputy director of central intelligence. McMahon, who had been Bill Casey’s number two, was precisely the official who had been confronted with the dilemma of CIA having carried out a covert action (an Iranian arms shipment) not covered by a presidential finding, for which a “retroactive” finding had had to be created. McMahon supported the 48-hour rule under all circumstances: “I come from the position that this oversight committee has to be an integral part of our intelligence program. As such it has to be a partner, particularly since it holds the purse strings.”[21]
Midway through these hearings, Senator Cohen indicated he was not fooled: “It is clear that the administration opposes the requirement of 48 hours and is seeking to delay Congress from acting for as long as possible, anticipating that this bill will lose momentum in the press of other business.”[22] That did not happen. Instead, on March 15, 1988, the Senate passed the bill by a vote of 79 to 19. The HPSCI parallel legislation, in 1988 retitled H.R. 3822, attracted a letter of opposition from former officials including national security advisers Zbigniew Brzezinski and Henry Kissinger, and CIA directors William Colby and Richard Helms. The sitting CIA director, William Webster, who had previously indicated some flexibility, gave a speech in May 1988 asserting a “serious constitutional question” about the bill and expecting a presidential veto.[23] The House eventually held hearings on its version of the law but did not legislate the matter. In the fall, Cohen wrote, “Congress has chosen to recognize that a president may be forced to pursue legitimate foreign policy objectives by covert means. Such recognition, however, does not mean it has surrendered its right to be informed of covert measures so that it can express its views as to the legitimacy of the goals or the wisdom of seeking to achieve them.”[24]
In November 1988, George Herbert Walker Bush was elected to succeed President Reagan. Bush had played a role in Iran-Contra as vice president under Reagan. In late 1988, the intelligence notification statute remained in suspended animation. In the absence of House passage of parallel legislation the Senate could not go farther immediately. The SSCI sought Bush administration reassurance that the sides held the same view on the meaning of notification language in the Intelligence Oversight Act. In early 1989, SSCI staff held meetings with NSC staff regarding compromise language (Document 5) and the White House found Senator Cohen adamant that a less explicit statement of “timely” notice must include withdrawal of the Cooper paper (Document 1) and revision of the 1988 Reagan directive on covert operations (NSDD-286), which had suggested a presidential option to deny information to Congress.[25]
Without arriving at a satisfactory compromise, on April 20 1989, Senator Cohen wrote directly to the national security adviser, Brent Scowcroft, (Document 6) to offer another solution: the Executive Branch and Congress would return to the understanding of the Intelligence Oversight Act, with “timely” defined as “a few days” and the 1986 Cooper paper, with its expansive claims as to presidential power, withdrawn. Failing that, Cohen would amend the intelligence budget authorization (covering Fiscal Years 1990 and 1991) to provide that no money from the CIA contingency reserve fund could be spent for any covert operation without prior congressional approval.
The Senate intelligence committee put the Bush administration in a bind with Cohen’s offer. President Bush had no desire to accede to an explicit 48-hour rule, and the administration preferred to leave covert operations notification as vague as possible. Nicholas Rostow, legal counsel to the NSC staff, enlisted William P. Barr, who had replaced Charles Cooper at the Office of Legislative Counsel (OLC) of the Department of Justice, to draft a response to the senator. Rostow stressed (Document 7) that the response should emphasize that President Bush wanted to preserve cooperation between the branches of government and avoid repetition of anything like Iran-Contra. As a sop to the SSCI the response, Rostow noted, should also mention that in case the CIA or White House delayed notification, the recent NSDD-286 regulation required that the delay be reconsidered at regular intervals. William Barr’s answering draft (Document 8) used Rostow’s points, argued that legislation on covert operations notification was neither necessary nor wise, and defended the Cooper memorandum. Barr, nominated in December 2018 by President Trump to be attorney general of the United States, employed the device of asserting that the paper to which Cohen objected was not so broad as the senator feared, while not actually drawing boundaries around the OLC arguments. Barr at least had the sense to advise Rostow not to send the letter unless the White House had reason to believe Cohen would actually accept it.
On June 27, NSC and SSCI staff met to discuss other alternatives (Document 9). They proved unable to reach any accommodation. Ten days later, Rostow warned colleagues that Cohen was serious about embargoing the CIA contingency fund (Document 10). In fact, on July 14 the senator obtained a unanimous vote at the SSCI for an amendment to the intelligence budget authorization that blocked money from the contingency fund. Cohen informed the White House he would withdraw his amendment on the Senate floor if President Bush agreed to the 48-hour rule. This was a Republican senator’s maneuver against a Republican president.
William Barr scripted the administration response. In a July 31 OLC paper for then-Attorney General Richard Thornburgh (Document 11), Barr rejected the SSCI’s limitation based on an ambitious claim to presidential power. While conceding Congress’s right to impose conditions on expenditures, his memo argues that the president’s foreign policy actions supersede the Congress’s limitations on expenditures. The OLC paper also conflates general foreign policy with CIA covert operations, which by their nature involve uses of force, hence implicating war powers, where the Constitution gives the Congress an explicit role, one which the Barr paper does not even touch. Barr’s argument also repeats a formula popular among the Executive Branch, drawn from the United States v. Curtiss-Wright case, where Franklin D. Roosevelt’s administration won a court ruling on withholding information, without dealing with the fact that Roosevelt officials had been following a congressional instruction in withholding, rather than contravening one. None of this was settled law. This Barr paper is a good example of why the Office of Legislative Counsel’s opinions are just that, and not the equivalent of court rulings.
A month later Dick Cheney joined the fray. Cheney’s view of presidential power tracked closely with William Barr’s, and he saw the Senate intelligence committee’s maneuver as attacking a national security prerogative of the president (Document 12). Cheney, at that time secretary of defense to the first President Bush, recommended that Bush warn the SSCI that the Fiscal Year 1990 intelligence authorization bill would be vetoed if it contained the contingency fund provision. It is noteworthy that this 1989 Richard Cheney paper referred to a proviso that the Executive could restrict notification to a restricted group of congressional leaders (the “Gang of Eight”) in “rare” circumstances, whereas when he served as vice president to the second President Bush, Cheney construed almost every covert operation with which he was involved as one of this rare type.
President George H. W. Bush did indeed veto the 1990 Intelligence Authorization Act. He used the “pocket veto” method of holding on to the legislation until the expiration of the 101st Congress. The Senate intelligence committee’s representations to the Bush White House had included word that if the sides could not reach a compromise on the contingency fund versus notification restriction, the SSCI would return to consider legislation imposing the 48-hour notification restriction. Thus a decision to claim sole authority over the CIA contingency fund left Bush with his original problem. Through the fall of 1989 NSC staff and CIA officials wrestled with the SSCI staff over various formulas that could be put in a presidential letter to reassure Congress (Documents 13, 14, 15). SSCI staff argued that a court, looking at the SSCI’s preferred language, would agree the president had an absolute duty to notify and would be in violation of the statute if he did not. Administration officials gradually coalesced around language that asserted the president’s “right” to withhold covert operations notification, while assuring Congress the “limited” withholding would be a rarely-exercised option, based on the president’s constitutional role as commander-in-chief.
On October 25, 1989, NSC legal aide Rostow sent Scowcroft the agreed draft of a letter President Bush could send to the SSCI leadership (Document 16). This text replicated the language cited above. The White House would preserve its options. The letter which President Bush actually sent SSCI Chairman Boren on October 30, 1989, was the Executive’s agreed language (Document 17). By this time Senator Cohen had relinquished the vice chairmanship, replaced by Alaska Republican Senator Frank Murkowski. Without Cohen the SSCI leadership weakened on this issue. A revised Fiscal Year 1991 intelligence authorization bill, complicated even further by SSCI concern over the status of covert operations carried out in behalf of the United States by third parties or private citizens, would be negotiated between Congress and the White House. The last item in today’s posting (Document 18) shows that by mid-1991 the “timely notification” issue remained live, and that Senator Murkowski suggested language that might assuage his Democratic colleagues. The Fiscal 1991 intelligence authorization would be signed into law on August 14, 1991.
The sides essentially agreed to disagree. The Congress insisted it had the right to timely notification. The White House insisted upon the right to withhold notification. The abuses of congressional oversight which took place over the CIA torture program during the second Bush presidency shows how damaging was the failure to achieve this reform in the wake of the Iran-Contra Affair.
Document 01
As the Iran-Contra scandal was beginning to develop, Assistant Attorney General Charles Cooper wrote this seminal and controversial Office of Legal Counsel opinion presenting a robust legal defense of the President’s purported legal authority to temporarily withhold notification to Congress of a series of covert actions related to Iran. The opinion concludes that, “A statute requiring the President to give Congress notice of covert operations ‘in a timely fashion’ if he withholds prior notification should be construed to permit the President sufficient discretion to choose a reasonable moment for notifying Congress, including withholding notification at least until the secret diplomatic or covert undertaking has progressed to a point when disclosure will not threaten its success.” The memo fails to define what constitutes “a reasonable moment,” and given the President’s “constitutional independence and authority in the field of foreign relations” the memo gives the President “virtually unfettered discretion” to determine when the “timely” or “reasonable” standard has been met, “until such time as he believed that disclosure to Congress would not interfere with the success of the operation.”
Document 02
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [1].”
After Congress introduced a bill proposing “substantial revisions” to Congressional reporting requirements on intelligence activities, John Bolton of the Department of Justice sends this forceful letter to Representative McHugh, Chairman of the Subcommittee on Legislation of the HPSCI, making clear that, “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.” Bolton complains that the legislation appears to “broaden the congressional notification requirements,” by requiring that the “timely notice” standard “require that such notice be given within 48 hours after the initiation of such operations.” Bolton further chastises the bill for its removal of references “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 his authorities and duties under the United States Constitution… [and the] President’s independent constitutional authority, namely section 501(b), which provides for presidential discretion in deferring notice to Congress concerning exceptionally sensitive intelligence activities.”
Document 03
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [5].”
In this letter to Senator Cohen, the Vice Chairman of the Senate Select Committee on Intelligence (SSCI), President Reagan expresses his support for a number of recommendations made by SSCI regarding the coordination with Congress of covert actions. However Reagan proposes that such changes be made through Executive Orders or Presidential Directives as opposed to Congressional Legislation, ultimately maintaining full control over these affairs in the hands of the President. Regarding Presidential findings which authorize covert actions, Reagan pledged, “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.” Furthermore, “No Finding should retroactively authorize or sanction a special activity.” With regards to Congressional notification of covert actions, Reagan ostensibly proposed a compromise position in favor of the 48-hour notification window, but maintained the President’s authority to ignore this provision in exceptional cases, “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.”
Document 04
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [5].”
In this draft statement for the SSCI and consistent with his 1986 OLC opinion (Document 1) Cooper makes it clear that the proposed Bill S. 1721, “would unconstitutionally intrude upon the President's authority to conduct the foreign relations of the United States.” Specifically, the main critique Cooper makes is that “The primary constitutional problem with S. 1721, however, arises not from the requirement that a finding be in writing, but instead from the requirement that a finding, under all circumstances, be reported to the congressional intelligence committees within a fixed period of time after it is signed… The proposed amendment to the National Security Act of 1947 would eliminate the flexibility that the current Act provides by requiring that notice always be given within 48 hours of the time that a finding is signed.” Cooper then notes the voluntary steps that President Reagan has taken to assuage Congressional concerns (Document 3), but warns that, “Despite this pledge of cooperation from the President, however, the Department [of Justice] believes that there is a point beyond which the Constitution will not permit congressional interference with the President's ability to initiate, direct, and control the sensitive national security activities at issue here. S. 1721 clearly transcends this point by purporting to oblige the President, under all circumstances, to notify Congress of a covert action within a fixed period of time.” In the remainder of his testimony Cooper outlines a series of instances where past Presidents withheld information from Congress and highlights some case law. He concludes by reminding members of Congress the limited role they shall play in foreign affairs, “There certainly is no provision of the Constitution that authorizes Congress to assume the role that it has provided for itself in S. 1721. This is not to deny that Congress has a legitimate role to play in the formulation of American foreign policy, but only to recognize that Congress is a legislative and not an administrative body… Congress in the performance of this legislative function does not require detailed knowledge of virtually all intelligence activities within a fixed period after the time that the President signs an order authorizing its initiation.” Cooper then claims that the only reason why Congress would demand a 48-hour notification is to micromanage intelligence policy, “But there could be no other explanation for the requirement of virtually contemporaneous transmittal unless Congress expects to take some action, or at least to reserve to itself the right to take some action, with regard to the subject of the finding. This attempt by the Congress to micro-manage the conduct of intelligence activities is highly impractical… “ Finally, Cooper explains that members of Congress do not have an interest in all that information, “In short, we are doubtful that Congress has a legitimate interest in having every single finding transmitted to it within 48 hours of the time that it is signed.”
Document 05
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [2].”
After meeting with staff members of the SSCI, the NSC’s Legal Adviser, Nicholas Rostow summarizes the crux of the controversy, “the issue outstanding was well articulated as being what it has always been: the limits on the President's constitutional discretion to act without prior notification to Congress and indeed without notifying Congress until the President deems it appropriate or ‘practicable.’” Rostow attaches a memo summarizing Senator Cohen’s main concerns and three potential compromises. First is to “Keep the existing phrase ‘in a timely fashion’ in a revised bill, replacing the 48-hour provision. Define this phrase in report language as meaning as soon as possible but in no event later than "a few days" after a finding is approved, with White House concurrence.” Second, the Justice Department will withdraw or supersede its 1986 opinion claiming “unfettered discretion” by the President (Document 1). Third, the Presidential Directive (NSDD 286) will “remove the suggestion that the President may withhold notice indefinitely from the Committee.” Ultimately, Rostow claims that Cohen “wants the President in a box, that is, an enumeration of the circumstances in which the President could delay notification.”
Document 06
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [3].”
In this letter by Senator Cohen to Scowcroft, the Senator wants to “make clear that I am willing to forego an absolute statutory requirement of notice to the intelligence committees within 48-hours of the president's approval… and accept the existing statutory language contained in section 501(b) of the National Security Act of 1947 as the legal basis for the reporting obligation. This would be contingent, however, upon the Administration's agreement to return to the original, mutually-shared interpretation of that provision, namely, that such notice would be provided ‘within a few days.’” In addition, Cohen demands that the 1986 OLC opinion (Document 1) be withdrawn. The Senator warns that “If such a compromise cannot be worked out, I see no institutional alternative for Congress but to prohibit use of the Reserve for Contingencies at CIA as a source of funding for covert actions. This would mean that no appropriated funds could be used for covert actions without obtaining the prior approval of the intelligence committees and appropriations committees.”
Document 07
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [5].”
This memo from Rostow to William Barr, the new head of the Office of Legal Counsel, seeks to coordinate an Executive Branch response to Senator Cohen’s letter (Document 6). Rostow outlines the three main (political) points they should make in their response, “in addition to any purely constitutional/legal points that are desirable.” First, is recognition by the President of the “importance of comity between the two branches.” Second, in reference to Iran-Contra, “the President understands the meaning of recent events and is determined to avoid a repetition.” Finally, regarding notification to Congress, “existing presidential guidance with respect to the internal Executive branch approval of special activities requires that he reconsider any decision to delay notification to Congress beyond 48 hours not less frequently than every ten days.”
Document 08
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [5].”
In this important draft letter for Senator Cohen, Bill Barr presents a defense of the 1986 OLC opinion that claimed “virtually unfettered discretion” by the President when it comes to notifying Congress on covert activities (Document 1). Although Barr suggests that he reads limits into the “unfettered discretion” section of the opinion, “I want to assure you that I do not read that opinion as suggesting that the President is free to disregard Congress' legitimate oversight responsibilities” [crossed out in the original with a check mark next to it], he then explains how it is legal for the President to withhold notification under exceptional cases, “I believe as the opinion suggests -- that the President's decision to delay notification would be based on the exigencies surrounding an operation. Once the exceptional circumstances justifying a delay in notification have abated, the President would have an obligation under section 501(b) to inform Congress. In other words, once the necessity for secrecy has ceased, the President would not have discretion under the statute to continue to withhold notice from appropriate Congressional committees.” Barr explains that “exceptional circumstances” would be met “when American lives could be jeopardized by disclosure of an operation.” Furthermore, even in such extraordinary cases, the letter explains that, “procedures are now in place that will assure that any decision to delay notification beyond forty-eight hours will be reconsidered at least once every ten days.” Barr tries to reassure Cohen by noting that the current President is committed to comity between the two branches, therefore, “we are confident that the ‘timely notification’ requirement will be met in good faith, and that further legislation in this sensitive area is neither warranted nor wise.” In the cover memo Barr cautions Rostow that “I would be reluctant to go forward with this letter unless we had some reason to believe Senator Cohen would be satisfied with it.”
Document 09
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [3].”
This memo by Rostow explains the continuing impasse over the language to be used in a letter for Senator Cohen concerning Congressional notification of covert actions. After meeting with staff members of the SSCI Rostow explains that he nor lawyers from DOJ nor the White House Counsel could accept the “Committee staff language is unacceptable for a presidential letter because it not too subtly implies that a delay beyond a few days would be violating a statute.” Instead, Rostow proposed language that said, “that the statute does not authorize the President to withhold notice beyond a few days in any situation in which he is not already authorized by the Constitution to withhold notice.” Rostow ends the memo by reminding Scowcroft to raise these issues with Senator Cohen during their forthcoming meeting, “The issues for compromise remain who is to sign the letter (Senator Cohen's letter was addressed to you) and how the letter should accommodate the different views of the law described above.”
Document 10
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [3].”
In this memo, Rostow warns his colleagues at the CIA and Department of Justice that Senator Cohen “continues to threaten elimination of the reserve for contingencies if the President does not sign this letter” and requests that they notify him of their thoughts on the letter as soon as possible. Cohen’s letter shows that disagreements remain over the 48-hour notification to Congress.
Document 11
George H. W. Bush Presidential Library, Bush Presidential Records, Office of Counsel to the President, Boyden C Gray, Confidential Alphabetical Subject Files, Folder, “War Powers: Panama.”
In response to Senator Cohen’s proposed amendment to prohibit expenditures from the CIA “Reserve for Contingencies” for any covert action “for which prior notice has been withheld,” William Barr writes this forceful defense of presidential power arguing that “we believe such a requirement is an unconstitutional condition on the president's authority to conduct covert activities abroad pursuant to the President's constitutional responsibilities, including his responsibility to safeguard the lives and interests of Americans abroad.” In addition, Barr explains that the “proposed amendment is unconstitutional because it would oblige the president to notify Congress of any and all covert actions to be funded out of the Reserve for Contingencies, regardless of the circumstances. It would apply even if the President is directing an extremely sensitive national security activity within his exclusive responsibility under the Constitution” (emphasis in original). While Barr recognizes Congress’ power of the purse, “Congress attempts to justify under its power of the purse requiring prior notification of all covert actions to be paid for out of the Reserve for Contingencies. Congress's authority incident to its power over the purse is broad, and generally includes the power to attach conditions to appropriations,” he contends that, “but its power is by no means limitless… Accordingly, however broad the Congress's appropriations power may be, the power may not be exercised in ways that violate constitutional restrictions on its own authority or that invade the constitutional prerogatives of other branches.” Therefore, Barr concludes that, “This well-established doctrine of unconstitutional conditions further prevents Congress from using its power over the appropriation of public funds to attach conditions to Executive Branch appropriations requiring the President to relinquish his constitutional discretion in foreign affairs.”
Document 12
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [3].”
The opening line in this memo by Secretary Cheney minces no words, “The Senate Intelligence Committee's FY'90 intelligence authorization bill (S. 1324) attacks a crucial national security prerogative of the President.” He goes on to explain that the administration should make clear “quickly and forcefully” that the proposed prohibition on the CIA’s use of the “Reserve for Contingencies” will be opposed by “the President's senior advisers [and they] will recommend that he veto the bill if it reaches him in its current form.” Otherwise, Cheney warns, “the Presidency will lose a vital capability it needs to protect the Nation.”
Document 13
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [1].”
In this memo to the President a frustrated Scowcroft laments that “We have attempted for over five months to negotiate the text of a letter that would satisfy Senator Cohen while accommodating our need to avoid defining ‘timely notice’ in a way that would put you in violation of the statute if you exercised your constitutional authority to withhold notice of covert actions from Congress when required to do so by considerations of national security.” Given the continued disagreement, Scowcroft recommends “that you veto the bill if approved containing Senator Cohen's amendment.” Finally, Scowcroft advices Bush to sign the attached letter for Senator Cohen which promises that the President will “provide notice ‘within a few days’ in all instances except where you have constitutional authority to withhold it, and explaining why we cannot fully embrace Senator Cohen's view of the ‘timely’ notice requirement.”
Document 14
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [3].”
In this memo, Daniel Levin and Stephen Rademaker explain that the latest language proposed by Senator Cohen “The unanimous view of Bill Barr, Boyden Gray and ourselves is that the language is not acceptable.” The problem remains the same given that the Executive Branch lawyers “believe a court would read the statute as requiring notice within 48 hours in all instances, with the further provision that if the President did not comply with that requirement he must give a statement of reasons why he did not do so. In that event, however, he would be in violation of the statute.” To the lawyers that language remains unambiguous to the point where, “We do not believe that the language is even sufficiently ambiguous so that side letters setting forth the respective views of the two branches would eliminate the problem or reduce it to an acceptable level of uncertainty.” The consequences could not be more dire for the President’s top advisers, “If this provision were adopted and the President ever withheld notice beyond 48 hours, there is a very real risk that he and his advisors could be indicted for conspiring to violate the statute.”
Document 15
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [2].”
This summary memorandum by the Legal Adviser to the National Security Council summarizes all the different formulations presented by Senator Cohen, as well as those proposed to the Senator by the White House, and those considered by the White House but which were not presented to Cohen.
Document 16
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [2].”
In this memo Rostow explains that the Counsel to the President and other senior lawyers should be able to “live with” the language in the attached draft letter by the President to the Attorney General regarding Congressional notification on covert action. The controversial passage in the draft Presidential letter reads, “I intend to provide notice in a fashion sensitive to congressional concerns. The statute requires prior notice or, when no prior notice is given, timely notice. I anticipate that in almost all instances, prior notice will be possible. In those rare instances where prior notice is not provided, I anticipate that notice will be provided within a few days. Any withholding beyond this period would be based upon my assertion of the authorities granted this office by the Constitution.”
Document 17
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [1].”
In this letter to the Chairman of the SSCI, President Bush citing the 1986 OLC opinion (Document 1), explains that, “The statute requires prior notice or, when no prior notice is given, timely notice. I anticipate that in almost all instances, prior notice will be possible. In those rare instances where prior notice is not provided, I anticipate that notice will be provided within a few days. Any withholding beyond this period would be based upon my assertion of the authorities granted this office by the Constitution.”
Document 18
George H. W. Bush Presidential Library, Bush Presidential Records, National Security Council, Nicholas Rostow Files, Subject Files, Folder, “Covert Action: Notification of [1].”
This memorandum explains how the White House finds itself once again in disagreement with proposed language concerning the timely notice requirement on covert action. In his letter, Scowcroft explains to Senator Murkowski of the SSCI that “We are disappointed to have to address the "timely notice" issue yet another time… We therefore strongly oppose the additional language, and trust that our concerns will be taken into account during congressional consideration of the bill.” The concern from the White House is that the new proposed language does not provide the President with an exception to avoid notification within a few days, “1991 Intelligence Authorization Act would repeal the existing ‘timely notice’ provision and reenact it in slightly different form... the new ‘timely notice’ provision could be interpreted to impose a statutory requirement that notice to Congress of covert actions always be provided within a few days.” Scowcroft then explains that their concern is not merely mincing words, but has potential legal implications for members of the Executive Branch, “The proposed addition to the report would imply, however, contrary to the President's letter, that any delay of notice beyond a few days on constitutional grounds would violate the statute. Our concern over this issue is far from hypertechnical, particularly in view of the potential applicability of the Independent Counsel statute.”
[1] John Prados, Safe for Democracy: The Secret Wars of the CIA. Lanham (MD): Rowman & Littlefield/Ivan R. Dee, 2006, pp. 507-571.
[2] Arturo Jimenez-Bacardi, Speaking Law to War: International Law, Legal Advisers and Bureaucratic Contestation in U.S. Defense Policy. Ph.D. Dissertation, University of California, Irvine, 2015, p. 118.
[3] The language would eventually be incorporated into the National Security Act of 1947 as its Section 501 (50 U.S.C. 513, Title V).
[4] Howard Kurtz, “Congress Was Warned of Notification Law Leeway,” Washington Post, November 21, 1986, p. A31.
[5] Charles Mohr, “Turner Says Congress Units Were Told of All Covert Intelligence Actions,” New York Times, March 19, 1980, p. A20.
[6] Senate Select Committee on Intelligence, “Procedures Governing Reporting to the Senate Select Committee on Intelligence (SSCI) on Covert Action,” June 6, 1984. Copy signed by Barry Goldwater and William J. Casey. Ronald Reagan Library: Papers of Ronald Reagan: Vincent Cannistraro Files, box 2: file: “Intelligence Oversight: Oversight Procedures.”
[7] National Security Council, “Covert Action Policy Approval and Coordination Procedures,” NSDD-159, January 18, 1985 (declassified June 30, 2000). Reagan Library: Reagan Papers: NSC-Declassified Documents, box 1, f.: “NSDDs nos. 151-160.”
[8] Scott Armstrong, Malcolm Byrne and Tom Blanton, The Chronology: The Documented Day-by-Day Account of the Secret Military Assistance to Iran and the Contras. New York: Warner Books, 1987, pp. 191-195, 238-240, 244-250, 260-266.
[9] Stephen Engelberg, “Covert Actions Said to Strain Senate Relations With CIA,” New York Times, April 22, 1986, p. A4.
[10] SSCI, “Addendum to Procedures Governing Reporting to the Senate Select Committee on Intelligence on Covert Action,” c. September 27, 1985. Signed by Dave Durenberger, Patrick Leahy, and William J. Casey. Reprinted in SSCI (100/1): Hearings: Nomination of Robert M. Gates to be Director of Central Intelligence. USGPO, 1987, p. 17-18.
[11] Ruth Marcus, “Intelligence Law: What Notice Does It Require?” Washington Post, December 21, 1986, p. A26.
[12] Hearings: Nomination of Robert M. Gates, op. cit.
[13] SSCI (100/1), Hearings: Nomination of William H. Webster to be Director of Central Intelligence. USGPO, 1987, pp. 65, 119-125.
[14] Fox Butterfield, “Wright Urges Requiring Disclosure of Covert Acts,” New York Times, April 2, 1987, p. A21; David B. Ottaway, “Tightening Intelligence Scrutiny,” Washington Post, April 2, 1987, p. A23.
[15] John Tower, Edmund Muskie and Brent Scowcroft, The President’s Special Review Board: The Tower Commission Report, February 27, 1987. New York: Times Books, 1987.
[16] David Hoffman and Walter Pincus, “Cuts Urged in Covert Operations,” Washington Post, April 19, 1987, p. A1.
[17] Fox Butterfield, “Admiral Reaffirms Stand on Deniability,” New York Times, July 22, 1987, p. A9. Also see Malcolm Byrne, Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power. Lawrence: University Press of Kansas, 2014, pp. 290-303.
[18] Steven B. Roberts, “Reagan Pledges New Steps to Keep Congress informed about Covert Operations,” New York Times, August 8, 1987, p. 5.
[19] Senate Select Committee on Intelligence (100/2), Hearing: Oversight Legislation. USGPO: 1988, pp. 110-121.
[20] Ibid., p. 86.
[21] Ibid., p. 243.
[22] Associated Press, “Cohen Says Administration Impedes Hill,” Washington Post, December 12, 1987, p. A8.
[23] Saundra Terry, “Webster Expects Veto of Covert Operations Bill,” Washington Post, May 24, 1988, p. A21.
[24] William S. Cohen, “Covert Operations: Tell Congress,” Washington Post, September 18, 1988, p. C7.
[25] Frank Carlucci had discussed NSDD-286 in his December SSCI testimony and left the intelligence committee with a set of extracts from it (SSCI, Oversight Legislation, pp. 203-206).