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."