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to our government and the institution of the Presidency. The President's credibility suffered drastically and with it the integrity of the nation's foreign policy.

One of the principal shortcomings of the Iran-contra

affair was the failure of the President to notify the

intelligence committees of the government's activities.

The

oversight process could have served a significant, salutary

purpose: giving the President the benefit of the wisdom of

those who are not beholden to him, but beholden like him

directly to the people, and prepared to speak frankly to him

based on their wide, varied experience. Had the President taken advantage of notifying Congress, he and the country

might well have avoided tremendous embarrassment and loss of

credibility.

The Iran-contra affair presents this Committee and the

country with a crucial question:

should the laws governing

covert activities be changed?

To answer this question, we first might examine the

attitude of President Reagan.

In his letter to the Senate

Intelligence Committee of August 7, 1987, the President said

that the current laws are adequate and that any changes could

occur by executive order.

I strongly disagree.

In the Iran-contra affair, the President displayed an

attitude that is antithetical to the oversight process.

You

will recall that the President signed a finding that explic

itly instructed the Director of the CIA not to notify the

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Congress had begun its inquiry, the President in his letter to

the Committee supported the concept of notification but

insisted on two exceptions.

These exceptions would relieve

the President of the notification requirement in "cases of

extreme emergency" and "exceptional circumstances."

I suggest

to this Committee that to permit these two exceptions would

make any notification requirement meaningless.

Further evidence of the Administration's attitude is the

Justice Department's December 1986 memorandum supporting the

President's position in delaying notification for ten months.

The memorandum offered the novel theory that the President may determine what is timely notice based on the sensitivity of

the covert activity.

According to this theory, the President

would never have to inform Congress of a particularly

sensitive activity.

This theory clearly would undermine the

whole concept of the duty of the President to keep the

Congress informed.

Moreover, we find that this continues to be the legal

theory of the Justice Department.

in testimony before the

Senate Intelligence Committee in December 1987, a Department

representative made the following statement:

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There may be instances where the President must
be able to initiate, direct, and control
extremely sensitive national security
activities. We believe this presidential
authority is protected by the Constitution, and
that by purporting to oblige the President
under any and all circumstances, to notify
Congress of a covert action within a fixed
period of time, s. 1721 infringes on this
constitutional prerogative of the President.

In other words, it is the attitude of the Administration

that, whatever laws exist, the President may interpret them as

he chooses.

This is not the way that I understand our consti

tution is supposed to work.

So, my answer to the question

confronting us today is that the laws governing the oversight

process must be changed.

And the changes must be specific,

direct, and as clear as possible.

I wish to lend my full support to H.R. 3822, the legis

lation that the Committee is considering today.

Late last

year, I testified before the Senate Intelligence Committee and

supported s. 1721, the companion bill to H.R. 3822.

I under

stand that the committees have worked togethe: on these bills,

and I commend your cooperation, as well as its result.

The

legislation that you have crafted meets the need for change

that exists in the important area of notifica:ion to the

Congress.

It would require the President to sign a written

finding, setting forth the particulars of a covert activity,

normally when approving it but in no event more than

forty-eight hours afterwards.

The legislatic.. would require

the President to provide the intelligence cor-ittees with the

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signed finding normally before the activity begins but in no

event more than forty-eight hours after it is approved. The President could limit notification to the so-called Group of Eight, but he would have to explain why he was doing so. Findings that purported to validate past activities or authorize

illegal measures would violate the law.

I view these provisions as welcome and worthwhile

improvements in the oversight process; however, I believe that

they do not go far enough to redress the recurring perils of

covert activities.

In order to discourage further abuses of

our foreign policy and consequent subversion of our institu

tions of government, I recommend that the legislation also

should contain sanctions to penalize any failure to notify

Congress within the required period.

Therefore, I would like to propose for the Committee's

consideration a provision to be added to H.R. 3822 that would

automatically terminate and prohibit the expenditure of funds

for any covert activity with respect to which the President

had failed to follow the oversight process.

This provision

would go beyond the ban on funding of unauthorized activities

in the proposed legislation, because it would require the

President, within the statutory period, to notify the

intelligence committees, as well as sign a finding.

Moreover,

I would go a step further.

According to my proposal, any

government officer or employee who knowingly and willfully

violated or conspired to violate the prohibition against the

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expenditure of funds for such a covert activity would face

criminal penalties.

This addition to the legislation, in my view and the

views of the Constitutional scholars whom I have consulted,

would be fully consistent with the letter and spirit of the

Constitution.

Furthermore, it would be fully warranted by the

principle of the rule of law which is our country's creed.

As I see it, there is no reason or excuse for failing to

notify the Congress according to the law, and there should be no exception to the sanction against violating such law. The

purpose of this legislation is not to assume good faith but to

ensure good government, and Congress should do whatever is

necessary and proper towards that end.

It is a grave matter to propose criminal penalties for

official misconduct.

Even so, it is a recourse that has ample

precedent, and regarding covert activities, it is a measure

that I consider to be necessary.

I can recall some twelve years ago testifying before the

Select Committee to Study Governmental Operations with respect

to Intelligence Activities

the Church Committee

regarding the gross abuses in covert activities that were the

concern of that committee. In my testimony in 1975, I said:

The lack of proper controls has resulted in a
freewheeling course of conduct on the part of
persons within the intelligence community that
has led to spectacular failures and much
unfortunate publicity. A new approach is
obviously needed, for it is unthinkable that we
can continue to commit the egregious errors that
have caused such consternation to our friends
and such delight to our enemies.

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