I 3 Murphy Memorandum Cooper Kmiec Carvin McGinnis White Reading file Dote o Subject June 9 1987 H R 1013 From To Kimberly Allan Attorney-Advisor Office of Legislative Affairs John McGinnis Attorney-Advisor Office of Legal Counsel Attached is the final letter to Congressman McHugh on our views of H R 1013 5P a 8f r V ' - Vf U S Department of Justice Office of Legislative and Intergovernmental Affairs Office of the Assistant Attorney General Washington D C 20550 Representative Matthew F McHugh Chairman Subcommittee on Legislation of the House Permanent Select Committee on Intelligence House of Representatives Washington D C 20515 Dear Mr Chairman This letter presents the views of the Department of Justice on H R 1013 a bill relating to the system of congressional oversight of intelligence activities The Department of Justice opposes enactment of this legislation because we believe it would unconsti- tutionally intrude on the President's authority to conduct the foreign relations of the United States H R 1013 would make substantial revisions of both the con- gressional reporting requirements of the National Security Act and the Hughes-Ryan Amendment Besides appearing to broaden the con- gressional notification requirements section 3 of H R 1013 would delete from section 501 a of the National Security Act the present express acknowledgment that the Act imposes reporting requirements on the President only insofar as the requirements are consistent with his authorities and duties under the United States Constitu- tion It would also delete the Act's provision acknowledging the Section 501 a presently provides emphasis added To the extent consistent with all applicable authorities and duties including those conferred by the Constitution upon the executive and legislative branches of the Government and to the extent consistent with due regard for the protection from unauthorized disclosure of classified information and information relating to intelligence sources and methods the Director of Central Intelligence and the heads of all departments agencies and other entities of the United States involved in intelligence activities shall -- 1 keep the Select Committee on Intelligence of the Senate and the Permanent Select Committee on President's independent constitutional authority namely section 501 b which provides for presidential discretion in deferring notice to Congress concerning exceptionally sensitive intelligence activities In place of the current Act's provision acknowledging the President's authority to provide timely notice in such sensi- tive situations section 3 of H R 1013 would purport to require that such notice be given within 48 hours after the initiation of such operations Section 2 of H R 1013 goes even further with respect to operations involving the Central Intelligence Agency It would purport to require that copies of Hughes-Ryan findings be pro- vided to certain executive branch officials and that this be done before the initiation of any operation requiring such findings Cont Intelligence of the House of Representatives fully and currently informed of all intelligence activities which are the responsibility of are engaged in by or are carried out for or on behalf of any department agency or entity of the United States including any significant anticipated intelligence activity except that A the foregoing provision shall not require approval of the intelligence committees as a condition precedent to the initiation of any such anticipated intelligence activity and B if the President determines it is essential to limit prior notice to meet extraordinary circumstances affecting vital interests of the United States such notice shall be limited to the chairman and ranking minority members of the intelligence committees the Speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate Needless to say deleting the underscored language would be only symbolic and could not alter the constitutional rights or duties of either branch 2 Section 501 b currently provides emphasis added The President shall fully inform the intelligence committees in a timely fashion of intelligence operations in foreign countries other than activities intended solely for obtaining necessary intelligence for which prior notice was not given under subsection a of this section and shall provide a statement of the reasons for not giving prior notice The Hughes-Ryan amendment 22 U S C 2422 provides in its present form No funds appropriated under the authority of 2 While the 48-hour provision of the new section 501 e of the National Security Act would apply to congressional notification of the Hughes-Ryan operations this unprecedented requirement of notification of subordinate executive branch officials appears to impose an absolute rule of prior notice In keeping with the long-standing view of Presidents of every Administration that has considered this issue the Department believes that these provisions of H R 1013 are unconstitutional As you know these same issues were the subject of thorough debate and extensive negotiation in 1980 when Congress was considering proposals for intelligence oversight legislation It was the position of the Administration then as it is of this Administra- tion now that there may be exceptional occasions on which the President's exclusive and inalienable constitutional duties in the area of foreign affairs would preclude him from giving prior notice of very sensitive intelligence-related operations This Administration like prior Administrations is anxious to work with Congress in devising arrangements to satisfy the legiti- mate interests in legislative oversight But the executive branch in 1980 recognized that there is a point beyond which the Consti- tut ion simply would not permit congressional encumbering of the President's ability to initiate direct and control the sensitive national security activities at issue here Testifying before the Senate Select Committee in 1980 then CIA Director Stansfield Turner emphatically pointed out that the prior notification then being considered would amount to excessive intrusion by the Congress into the President's exercise of his powers under the Constitution See National Intelligence Act of 1980i Hearings before the Senate Select Committee on Intelligence 96th Cong 2d Sess 17 1980$ The Constitution confers on the President the authority and duty to conduct the foreign relations of the United States Covert intelligence-related operations in foreign countries are among the Cont this chapter or any other Act may be expended by or on behalf of the Central Intelligence Agency for operations in foreign countries other than activities intended solely for obtaining necessary intelligence unless and until the President finds that each such operation is important to the national security of the United States Each such operation shall be considered a significant anticipated intelligence activity for the purpose of section 413 of title 50 T section 501 of the National Security Act 4 Section 2 of H R 1013 also requires that the national sfcu5 finding be in writing We do not however interpret this to that signed copies of the finding must be provided to Congres 3 most sensitive and vital aspects of this duty and they lie at the very core of the President's Article II responsibilities in this letter the Department will not seek to detail all the authorities and precedents relevant to our conclusion that an absolute prior notice requirement of the kind proposed in H R 1013 would be unconstitutional In summary however the Department believes that the Constitution as confirmed by historical practice and clear statements of the United States Supreme Court leaves the conduct of foreign relations which must include foreign intelli- gence operations to the President except insofar as the Consti- tution gives specific tasks to the Congress The principal source for the President's wide and inherent discretion to act for the nation in foreign affairs is section 1 of article II of the Constitution wherein it is stated The execu- tive Power shall be vested in a President of the United States of America The clause has long been held to confer on the Presi- dent plenary authority to represent the United States and to pursue its interests outside the borders of the country subject only to limits specifically set forth in the Constitution itself and to such statutory limitations as the Constitution permits Congress to impose by exercising one of its enumerated powers The President executive power includes all the discretion traditionally available to any sovereign in its external relations except insofar as the Constitution places that discretion in another branch of the government Before the Constitution was ratified Alexander Hamilton explained in The Federalist why the President's executive power would include the conduct of foreign policy The essence of the legislative authority is to enact laws or in other words to prescribe rules for the regulation of the society while the execution of the laws and the employment of the common strength either for this purpose or for the common defense seem to com- prise all the functions of the executive magistrate See The Federalist No 75 at 450 A Hamilton C Rossiter ed 1961 By recognizing this fundamental distinction between prescribing rules for the regulation of the society and employing the common strength for the common defense the Framers made clear that the Constitution gave to Congress only those powers in the area of foreign affairs that directly involve the exercise of legal authority over American citizens As to other matters in which the nation acts as a sovereign entity in relation to outsiders the Constitution delegates the necessary authority to the President in the form of the executive Power The authority of the President to conduct foreign relations was first asserted by George Washington and acknowledged y the First Congress Without consulting Congress President Washington determined that the United States would remain neutral i n tne war between France and Great Britain The Supreme Court and Congress Cont to subordinate executive branch officials 4 too have recognized the President's broad discretion to act on his own initiative in the field of foreign affairs In the leading case United States v Curtiss-Wriqht Export C o r p r 299 U S 304 1936 the Court drew a sharp distinction between the President's relatively limited inherent powers to act in the domestic sphere and his far-reaching discretion to act on his own authority in managing the external relations of the country The Supreme Court emphatically declared that this discretion derives from the Constitution itself stating that the President is the sole organ of the federal government in the field of international relations -- a power which does not require as a basis for its exercise an act of Congress 299 U S at 319-320 emphasis # Moreover as the Curtiss-Wriqht Court noted the Senate Committee on Foreign Relations acknowledged this principle at an early date in our history stating that the President is the constitutional representative of the United States with regard to foreign na- tions The Committee also noted that the President's consti- tutional responsibility is the surest pledge for the faithful discharge of his duty and the Committee believed that interfer- ence of the Senate in the direction of foreign negotiations is calculated to diminish that responsibility and thereby to impair the best security for the national safety 299 U S at 319 quoting U S Senate Reports Committee on Foreign Relations vol ' 8 p 24 Feb 15 1816 Curtiss-Wriqht thus confirms the President's inherent Article II authority to engage in a vide range of extraterritorial foreign policy initiatives including intelligence activities -- an authority that derives from the Constitution not from the passage of specific authorizing legislation Despite this wide-ranging authority Presidents have been careful to consult regularly with Congress to seek support and counsel in matters of foreign affairs Moreover ve recognize that the President's authority over foreign policy precisely because its nature requires that it be vide and relatively unconfined by preexisting constraints is inevitably somewhat ill-defined at the margins Whatever questions may arise at the outer reaches of his power however the conduct of secret negotiations and intelligence operations lies at the very heart of the President's executive power The Supreme Court's Curtiss-Wriqht decision itself notes the President's exclusive power to negotiate on behalf of the United States The Supreme Court has also and more recently emphasized that this core presidential function is by no means limited to matters directly involving treaties In United States v Nixon 418 U S 683 1974 the Court invoked the basic CyrtissWriqht distinction between the domestic and international contexts to explain its rejection of President Nixon's claim of an absolute privilege of confidentiality for all communications between him and his advisors While rejecting this sweeping and undifferen- tiated claim of executive privilege as applied to communications involving domestic affairs the Court repeatedly and emphatically stressed that military or diplomatic secrets are in a category such secrets are intimately linked to the h Article II duties where the courts have traditionally shown the 5 utmost deference to Presidential responsibilities 710 emphasis added 418 U S at We are unaware of any provision of the Constitution that affirmatively authorizes Congress to have the role provided in H R 1013 Congress implied authority to oversee the activities of executive branch agencies is grounded on Congress need for infor- mation to consider and enact needful and appropriate legislation Congress in the performance of this legislative function however does not require detailed knowledge of virtually all intelligence activities particularly prior to initiation Oversight of ongoing operations has the potential to interfere with the ability of the President to discharge the duties imposed on him by the Consti- tution Accordingly the President must retain his constitutional discretion to decide whether prior notice in certain exceptional circumstances is not appropriate Since the current legislation was adopted in 1980 of course the President has provided prior notice of covert operations in virtually every case Moreover in acting to implement the recom- mendations of the Tower Board the President recently reaffirmed his committment to the current statutory scheme of notification See the text of National Security Decision Directive No 266 which accompanied the President's message to Congress of March 31 1987 The Department of Justice also objects to Section 2 of H R 1013 which would purport to require that the President furnish copies of his national security findings to the Vice President the Secretary of State the Secretary of Defense and the Director of Central Intelligence before the initiation of any operation requiring a Hughes-Ryan finding Like the congressional prior notice requirements though for somewhat different reasons this provision is inconsistent with the President's constitutional authority By requiring certain of the President's subordinates to be notified of covert actions before they occur this proposal would infringe on the President's prerogatives as head of a unitary executive branch to exercise full discretion in consulting and communicating with his subordinates The Constitution places the whole executive power in the hands of the President ' '-in contrast to political systems that employ some form of cabinet government our Constitution is based on the principle of the unitary executive It is worth emphasizing that the Framers deliberately chose this principle and deliberately rejected the cabinet or privy council alternative with which they were quite familiar from British practice and from the consti- tutions of most of the original states Indeed Article II fect P 2 of the Constitution provides that the President gax Opinion in writing of the principal Officer in each of the execu tive Departments upon any Subject relating to the Duties of respective Offices emphasis added Plainly it is the P who decides when he requires the advice of others in the R xe Branch and which persons he will consult Neither his author Y seek advice from such officials as he may choose nor the manner in which he makes such consultations may be circumscribed by Co g The Framers' two main reasons for choosing to create a unitary executive were complementary and mutually reinforcing First 1 they thought that for the executive branch in sharp contrast to the legislative branch rapid and decisive decision-making is suf- ficiently important that it outweighs the inevitably concomitant danger that rash or ill-considered actions will be undertaken See The Federalist No 70 at 423-24 A Hamilton C Rossiter ed 1961 Second the Framers believed that unity in the executive would promote what today we call accountability As Alexander Hamilton pointed out the more that the executive power is watered down and distributed among various persons the easier it is for everyone concerned to avoid the blame for bad actions taken or for desirable actions left undone See The Federalist No 70 at 427 A Hamilton C Rossiter ed 1961 Certainly it would be unwise as well as unconstitutional to move our governmental institutions in a direction that could lead to less presidential accountability Of course we acknowledge that consultation with the members of the National Security Council would almost always be a prudent presidential policy We object only to undertaking to make such consultation a legal obligation As a constitutional matter therp is no difference between the subordinate officials listed in this bill and thousands of other executive branch officers If one statute could require the President to notify any of them of his national security findings prior to initiating a covert operation another statute could just as easily require him to notify other subordinates or all of them Thus given the Constitution's creation of a unitary executive the cabinet notification require- ments in section 2 of this bill like the congressional notifica- tion requirements discussed earlier are inconsistent with Article II of the Constitution The Framers also believed that placing the whole of the executive power in one man was usefully conducive to secrecy-- a consideration directly relevant to H R 1013 See The Federalist No 70 at 424 A Hamilton C Rossiter ed 1961 6 Indeed in keeping with past practice the President has directed that proposed covert actions be coordinated with NSC participants including the Attorney General and their tive recommendations communicated to the President o o o o NSDD 266 March 31 1987 7 The requirement in section 2 of H R 1013 that the national security finding mandated by the Hughes-Ryan Amendment be in writing also raises questions insofar as it has some Potential interfere with the President's discretion in choosing how to his own office On the other hand because this provision d serve the legitimate purpose of facilitating after-tne-fact congressional oversight it is the least objectionable featur H R 1013 7 o 4 In closing the Department notes that when proposals similar to those in H R 1013 were introduced in 1979 and 1980 it was recognized that no President has either the right or the power to alter the Constitution s allocation of powers among the institu- tions of our government This view was correct then and is correct now The Office of Management and Budget has advised this Depart- ment that it has no objection to the submission of this report to Congress Sincerely John R Bolton Assistant Attorney General Office of Legislative Affairs #' 8 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