c l Dear Mr Chairman Members of the Committees I am pleased to appear before you today to discuss the constitutional issues implicated by S 1721 a bill relating to the system of congressional oversight of intelligence activities The Department of Justice believes that this legislation in its % present form would unconstitutionally intrude upon the President's authority to conduct the foreign relations of the United States In my statement I will discuss briefly the constitutional problems with S 1721 It will be left to others in the Administration to address concerns of a nonconstitutional nature S 1721 of course would repeal the Hughes-Ryan Amendment which requires Presidential approval of covert actions by the CIA In its place S 1721 would institute a new presidential approval requirement which would become Section 503 of the National Security Act of 1947 Proposed Section 503 would require that the President authorize all special activities or covert actions conducted by any department agency or entity of the United States government The Presidential approval would take the form of a finding which would be reduced to writing within forty-eight hours of the time that a decision regarding covert actions is made Proposed Section 503 would be broader than the Hughes-R yan Amendment in that it would apply not just to covert actions conducted by the CIA but also to covert actions conducted by other agencies or entities of the United States This change does not in and of itself raise a serious constitutional problem To the extent that Congress constitutionally may impose require- ments of Presidential approval and notification to Congress on covert actions conducted by the CIA it also may impose such requirements on covert actions conducted by other agencies and entities The Department of Justice believes however that the requirement of notification to Congress set forth in S 1721 is unconstitutional Increasing the scope of the requirement therefore exacerbates the constitutional problem S 1721 would do much more than extend the Presidential approval requirement to agencies other than the CIA It also would require that the findings be in writing ' In circumstances where time does not permit the preparation of a written finding prior to Presidential approval S 1721 would require that a written finding be prepared as soon as possible In no event would S 1721 permit the preparation of a written finding more than forty-eight hours after a Presidential decision had been made The Department of Justice believes that this proposed change is completely unnecessary In a letter to Chairman Boren dated August 7 1987 the President pledged that e xcept in cases of extreme emergency all national security findings will be in writing Moreover the President stated that if an oral directive is necessary a finding will be reduced to writing and signed by the President as soon as possible but in no event more than two working days thereafter It is evident therefore that the President already has recognized the need to commit 2 findings to-writing and he has adopted procedures virtually identical to those set forth in the bill in order to ensure that findings are put into written form as soon as possible 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 circum- stances be reported to the congressional intelligence committees within a fixed period of time after it is signed The current statutory sch'eme of course recognizes that there may be some circumstances in which Congress is not given prior notice of a finding In such situations the President is required only to inform the intelligence committees in a timely fashion of the covert action 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 This Administration like prior Administrations is anxious to work with Congress in devising arrangements to satisfy the legitimate interests in legislative oversight For that reason President Reagan has provided prior notice of covert operations in virtually every case Moreover the President repeatedly has reaffirmed his commitment to the current statutory scheme of prior notification In the letter to Senator Boren to which I earlier referred the President stated that i n all but the most exceptional circumstances timely notification to Congress under Section 501 b of the National Security Act will not be delayed beyond two working days of the initiation of a special 3 activity --Despite this pledge of cooperation from the President however the Department 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 this testimony I will not attempt to discuss all of the authorities and precedents relevant to our conclusion that an absolute requirement that Congress be notified within a fixed period of time is unconstitutional Nevertheless I do believe that it is important to discuss briefly some of the sources that support our conclusion the Constitution itself First of course there is the text of Article II section 1 of the Constitu- tion provides that t he executive Power shall be vested in a President of the United States of America This clause has long been held to confer on the President a plenary authority to represent the United States and to pursue its interests outside the borders of the country subject only to the limits set forth in the Constitution itself and to such statutory limitations as the Constitution permits Congress to impose by exercising one of its enumerated powers A lexander H a m ilto n C o n s t it u tio n ve sts re la tio n s a u th o rity i n The F e d e r a l i s t r e c o g n iz e d t h a t the i n th e P r e s i d e n t th e power t o conduct f o r e ig n He s a i d t h a t t h e essence of th e l e g i s l a t i v e i s t o e n a ct la w s o r in o t h e r words to p r e s c r i b e r u le s 4 for the regulation of society The executive magistrate Hamilton argued should be concerned instead with the execution of the laws and the employment of the common strength for the common defense This fundamental distinction between prescribing rules for the regulation of the society and employing the common strength for the common defense is important It shows that the Framers intended to give 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 executive Power The first President of the United States of course asserted his authority to conduct foreign affairs President Washington without consulting Congress issued the famous Proclamation of Neutrality which provided that the United States would remain neutral in the war between France and Great Britain Alexander Hamilton writing under the pseudonym Pacificus again argued persuasively that the direction of foreign policy is an inherently executive function It is clear moreover that Washington and his successors recognized that this power carries with it the authority to withhold information from Congress when that information relates to the conduct undertaken pursuant to President's prerogative in foreign affairs In 1792 the House of Representatives called upon the Executive branch to produce persons papers and records 5 relating to a military campaign that General St Clair had led against Indians in the Northwest President Washington summoned his Cabinet to discuss the congressional request because he believed that insofar as it might become a precedent it should be rightly conducted The President pointed out that there might be papers of so secret a nature as they ought not to be given up After considering the matter for a couple of days the Cabinet reached the same conclusion A Cabinet report stated that the Executive branch should communicate such papers as the public good would permit but that it should refuse those the disclosure of which would injure the public The advice given to President Washington by his Cabinet was followed by President Tyler about 50 years later The House of Representatives called upon Tyler s Secretary of War to provide reports dealing with the affairs of the Cherokee Indians and on frauds allegedly practiced upon them President Tyler decided to withhold the bulk of the reports because he believed that their publication would not be in the public interest He recognized that the reports related to a legitimate subject of congressional concern Nevertheless in a message dated January 31 1843 President Tyler stated that i t cannot be that the only test is whether the information relates to a legitimate subject of deliberation Tyler asserted that t he injunction of the Constitution that the President 'shall take care that the laws be faithfully executed necessarily confers an authority to under- take confidential inquiries 6 President Tyler made another decision to withhold confidential information from Congress which was affirmed by his successor James K Polk In 1846 the House of Representatives asked for an accounting of $5460 that had expended by President Tyler during the negotiation of a treaty with Great Britain President Polk responded that the experience of every nation on earth has demonstrated that emergencies may arise in which it becomes absolutely necessary for the public safety or the public good to make -expenditures the very object of which would be defeated by publicity According to President Polk President Tyler had solemnly determined that the circumstances surround- ing the expenditure of these funds should remain a secret Therefore President Polk refused to revise the acts of his predecessor There have been many other situations in which a President has refused to accede to a Congressional request for information that he deems confidential These range from President Hoover's refusal to provide the Senate Foreign Relations Committee with letters leading up to the London Treaty to President Eisenhower's refusal to turn over personnel information during Congressional investigations into the loyalty-security program Moreover on numerous occasions in our history Congress itself has recognized that its power to get information from the Executive branch is not absolute particularly when it relates to a matter within the ambit of the President's foreign affairs powers James M a d i s o n w h i l e a member o f t h e House o f R e p re se n ta tive s d e f e n d e d W a s h i n g t o n ' s d e c i s i o n t o w i t h h o l d from 7 House information relating to the negotiation of the Jay Treaty Madison asserted that he the Executive had a right to withhold information when he conceived that in relation to his own department papers could not be safely communicated Indeed historically most congressional requests for Executive branch information have been qualified to exclude information that the President deems it inappropriate to disclose Thus for example when calling upon President Jefferson to provide infor- mation relating to the Burr conspiracy the House requested all such information except such as the President may deem in the public welfare to require not to be disclosed Likewise when in 1825 Congress was investigating charges against naval officers in the Pacific it requested only that information that President Monroe believed could be delivered in a manner compatible with the public interest C o n g r e s s i o n a l r e c o g n i t i o n of th e P r e s i d e n t ' s w ith h o ld rig h t to i n f o r m a t i o n has c o n t i n u e d i n t o th e t w e n t i e t h c e n t u r y S e n a t o r O'Mahoney o f Wyoming who was one o f th e g r e a t e s t p r o p o n e n t s o f c o n g r e s s i o n a l access t o E x e c u t i v e b ra n c h in fo r m a - tio n d i d n o t h i n g more than s t a t e th e t r a d i t i o n a l u n d e r s t a n d in g when he rem arked i t th e c o n s t i t u t i o n a l i s g e n e r a l l y a greed t h a t th e P r e s i d e n t has rig h t in m atters of f o r e ig n r e l a t i o n s to d e c l i n e t o g i v e o u t i n f o r m a t i o n when he b e l i e v e s t h a t such i n f o r m a t i o n w ou ld i m p a i r n a t i o n a l s e c u r i t y S e n a to r Humphrey made th e same p o i n t when he t o l d th e Senate t h a t t h e r e is no b i l l we can w r i t e whereby we can compel th e p r e s i d e n t of the U n ite d S tate s to d e l i v e r in fo rm a tio n i f he f e e l s such is con- t r a r y t o h i s d u t y under the C o n s t i t u t i o n of the U n i t e d S t a t e s 8 The federal judiciary like its two coequal branches also has recognized the President's important powers in the area of foreign affairs In Curtiss-Wriqht the Supreme Court drew a sharp distinction between the President's relatively limited inherent powers to act in the domestic sphere and his farreaching discretion to act on his own authority in managing the external relations of the country The 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 Curtiss-Wright thus confirms the President's inherent Article II authority to engage in a wide range of extra- territorial foreign policy initiatives including intelligence activities -- an authority that derives from the Constitution not from the passage of specific authorizing legislation More recently the Supreme Court again has emphasized that the President has broad powers in the area of foreign affairs Moreover the Court's reasoning indicates that this power will sometimes justify withholding information from the other branches of the government In United States v Nixon the Court invoked the basic Curtiss-Wright distinction between the domestic and international contexts to explain its rejection of former President Nixon's claim of an absolute executive privilege While rejecting his sweeping and undifferentiated claim of privilege as it applied to communications involving domestic affairs the Court repeatedly stressed that military or 9 diplomatic j ecrets are in a different category The Court's opinion stated that such secrets are intimately linked to the President's Article II duties where the courts have tradition- ally shown the utmost deference to Presidential responsibili- ties Despite this wide-ranging authority which has been recognized by all three branches of our government Presidents have been careful to consult regularly with Congress to seek support and counsel in matters of foreign affairs Nevertheless it is important to remember that this cooperation has been volun- tary on the part of the President 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' implied authority to oversee the activities of executive branch agencies is grounded on its need for information to consider and enact needful and appropriate legislation 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 S 1721 appears to be designed to involve Congress in the routine administration of covert intelligence activities To be sure the bill does not provide for anything more than trans- it mittal of d -presidential finding to Congress within 48 hours of its execution 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 for 535 % members of Congress can hardly be expected to act with the secrecy and dispatch required in the intelligence field 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 Even if it can be assumed that Congress has a legitimate interest it does not follow that the President invariably should communicate findings to Congress within 48 hours of the time that they are signed As President Tyler recognized in 1843 i t cannot be that the only test is whether the information relates to a legitimate subject of congressional deliberation A President should not communicate any information to Congress if to do so would interfere with his ability to execute his own constitutional duties Under some circumstances communicating findings to Congress within 48 hours might frustrate the President's ability to conduct foreign affairs For example it was absolutely necessary that the Carter Administration withhold from Congress information relating to Canada's involvement in the smuggling of six American hostages out of Iran According to Admiral Stansfield Turner who was Director of the CIA at the 11 time Canada made withholding notification a condition of their participation This is not to suggest that the President should routinely withhold information from Congress But Congress should not place an absolute notification requirement on the President that might interfere with his ability to conduct foreign affairs In this regard it might be useful to recall the debates in the Senate on the Mutual Security Act of 1957 Senator O' Mahoney of Wyoming whom I quoted earlier proposed an amendment to the act that would require the Secretary of State to keep the foreign relations and appropriations committees of both the House and the Senate fully informed with respect to all activities of the Department of State or any agency thereof o The amendment was attacked as both an unconstitutional infringement of the President's executive power and as an ill-advised attempt by Congress to administer the foreign policy of the United States Senator J William Fulbright who members of the Committee will recall as an ardent and eloquent advocate of an active congressional role in foreign policy formulation charged that the purpose of the bill was to assume the responsibility which is in the executive Senator Humphrey joined Senator Fulbright in opposing the amendment noting that day to day type of reporting would impair the administration of foreign policy The Senate with the remarks of Senators Fulbright and Humphrey in mind defeated the O'Mahoney Amendment This Committee and this Congress can profit from its example 1721 arrogates to Congress an authority for which it is 12 S neither institutionally suited nor constitutionally entitled and I strongly urge its rejection There are two other provisions of S 1721 which raise problems of a constitutional nature Proposed Section 502 would require that intelligence agencies disclose to Congress whatever information concerning intelligence activities other than special activities that Congress deems necessary to fulfill its responsibilities Proposed Section 503 has a similar provision concerning information relating to covert actions Neither of the provisions enumerates any situations in which the Executive branch may decline to provide the requested documents The Department of Justice believes that this blanket statutory requirement of disclosure may conflict with the President's right to withhold confidential documents in instances where such action is necessary to the performance of the Executive's constitutional respons ibi1it ies First many of the documents retained by intelligence agencies may constitute state secrets In both the Curtiss- Wright and Nixon cases the Supreme Court recognized the authority of the Executive branch to protect state secrets Indeed in commenting on President Washington's refusal to comply with a congressional request for documents relating to relations with foreign countries the Curtiss-Wriqht Court stated that it was a refusal the wisdom of which was recognized by the House itself and has never since been doubted While the provisions of the bill requiring disclosure of information permit the executive branch to provide such information with due regard for 13 the protection of classified information relating to sensitive intelligence sources and methods the category of state secrets is not subsumed by intelligence sources and methods For instance a confidential communication from a foreign head of state concerning the policy of his government with respect to a particular foreign policy problem would reveal intelligence sources or methods but might well be a state secret Other documents retained by intelligence agencies although not state se'crets may constitute interagency communications We believe that the Executive branch may also legitimately refuse to provide these documents to Congress The Supreme Court in the Hixon case recognized that there is a valid need for protection of communications between high government officials and those who advise and assist them While this decision was rendered in the context of Presidential communications the same principles would apply with respect to communications containing the policy deliberations of other executive officials The need to protect deliberative communications derives from the need for candor and objectivity in the policymaking decisions of the government United States v Nixon supra at 705-706 See This need exists not only at the Presidential level but also at other levels in the government Of course the Executive branch will attempt to cooperate with Congress in fulfillment of its legitimate responsibilities Frequently this cooperation may take the form of providing information to Congress We cannot agree however that a blanket requirement of disclosure in all cases in which 14 C ongress sees fit tq-request disclosure is appropriate As I have men- tioned often the information requested will be protected because it is a state secret or because it involves an intra-branch communication that was part of the deliberative process The President must retain the discretion to withhold such information when its disclosure would impair his ability to fulfill his own constitutional responsibilities In sum then S 9 1721 raises two serious constitutional problems First the requirement that the President under all circumstances report to Congress within 48 hours of the time that a finding is signed authorizing covert action unconstitu- tionally interferes with the President's foreign affairs powers Second two other provisions of the bill purport to interfere with the President's authority to protect documents that contain state secrets or confidential executive branch deliberations These provisions attempt by legislation to alter the Constitu- tion's allocation of powers among the institutions of our govern- ment This simply cannot be done by legislation regardless of whether the Executive branch concurs in the reallocation of power This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu