25. INTELLIGENCE AUTHORIZATION ACT: CONSTITUTIONAL
ISSUE
At 3:30 a.m., on Saturday, August 4, 1990, a small group of Senators,
in an unrecorded voice vote, passed a bill (SB 2834) that could fundamentally
alter our constitutional system and threaten the continued viability
of our democratic experiment. With minor revisions, and no media attention,
a similar bill was passed by the House of Representatives in the hectic
closing days of the 101st Congress. It subsequently was vetoed by President
George Bush who objected to provisions that would require him to notify
Congress each time he planned to use foreign governments or private
companies to carry out covert actions.
The law would have legitimized the kinds of abuses that shocked the
nation in the Iran-contra debacle.
The Intelligence Authorization Act, and specifically Title VII, the
"Oversight of Intelligence Activities" section, would have
amended the National Security Act of 1947 in such a way that the President
of the United States would be granted unprecedented powers and financial
provisions for covert action.
The misnamed "oversight" section:
- authorized the President to conduct covert operations, an authority
never before explicitly recognized in Legislation, and erroneously
asserted that this Presidential power has a constitutional basis;
- explicitly denied any power on the part of the Congress to disapprove
covert actions;
- provided that the President may use any Federal agency or entity,
not just the CIA, to fund or conduct covert operations. This step
would vastly expand the resources available for such operations and
make oversight even more difficult;
- allowed the President to use third countries and private contractors
to conduct or fund covert operations;
- required the President to make a finding prior to initiating a
covert action and deliver that finding to the Congress, but allowed
the President to withhold key details of an operation from Congress,
either by asserting that such information is extraordinarily sensitive
or by claiming executive privilege. Withholding information was the
primary method used by the executive branch to limit Iran-contra prosecutions.
This bill, passed by both houses, nearly became law without any national
debate. It would have anchored covert operations in statutory law as
a permanent instrument of United States foreign policy for the first
time in history. While touted as a reform bill to address the abuses
revealed in the Iran-contra scandal, this "reform" legislation
authorized virtually every abuse.
While national attention was focused on the mideast crisis and the
federal budget, Congress abdicated its role in the political process
and nearly transferred significant authority over the United States
Government to former CIA director, now president, George Bush and to
what Bill Moyers has called the "secret government" endangering
our Constitution.
SSU CENSORED RESEARCHER: DENISE MUSSETTER
SOURCE: CHRISTIC INSTITUTE ACTION ALERT, 1324 North Capitol St., NW,
Washington, DC 20002, DATE: 9/12/90 (Via PeaceNet)
TITLE: "Analysis of Covert Operations Bill"
CO-AUTHORS: Sara Nelson and Lanny Sinkin
COMMENTS: Concerned with the constitutional ramifications of
The Intelligence Authorization Act, the Christic Institute's Media Department
mailed out more than 300 packets of information over the course of several
weeks to print and electronic media sources. In spite of this, however,
the story was virtually shut out of the media. Co-author Lanny Sinkin
points out the danger of what happens when the media fail to do their
job. "In a Constitutional Democracy, elected officials presumably
engage in public policy debates which are then carried by the media
to the public for further debate and evaluation. Elected officials should
then be informed by their constituents which should in turn inform the
formulation and implementation of public policy. Denying the public
access to important public policy debates is a detour around the democratic
process. Elected officials become in essence a professional team of
policy makers in the absence of public debate. In the case of this particular
story, the Congressional Intelligence Committees were essentially giving
the Executive Branch carte blanche to conduct covert operations even
to the point of proclaiming that these powers are expressly given to
the Executive in the U.S. Constitution. The critical issue here, is
an attempt by Congress to amend the Constitution legislatively. Any
amendment to the Constitution would certainly deserve widespread debate
and proper procedure. The media should be an important vehicle in this
process. Covert operations are not a Constitutional prerogative of the
Executive in the conduct of foreign policy and the media needed to inform
the public about this critical violation of our democratic process."
Ironically, the bill, which had been passed by Congress, was subsequently
vetoed by President Bush. "Even the minimal oversight, as opposed
to control, embodied in the bill, was considered too intrusive by the
President," Sinkin noted. It now becomes important to follow what
happens, Sinkin added. "The President is continuing to fund covert
operations, claiming authority to do so from the general authorization
for intelligence activities found in the Department of Defense Bill.
(See story # 7, Page 30) We view this continued funding as a clear violation
of a 1985 amendment to the National Security Act which requires that
covert funds be spent only pursuant to a specific authorization by Congress.
The question remains whether the Congress will a) do nothing and accept
the President's position; b) pass an even weaker bill the President
will sign; c) pass the same bill and try to override a veto; or, d)
assert their proper Constitutional role and pass a law explicitly restating
the Constitutional order which requires Congress to declare war, raise
and finance armies, and appropriate funds."