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operations from the President, as apparently occurred during the Iran-Contra affair, "simply didn't occur to us. There was, if you will, a legalistic, an ethical mind-set which simply precluded that as a possibility.”
The importance of a sensitivity to law and propriety among Government officials can hardly be stressed enough. As always, the quality and integrity of office-holders, along with their attitudes toward Congress and the give-and-take that is the hallmark of democracy, will determine in large measure how well America's experiment in self-government works.
In light of this Nation's ongoing need for an effective intelligence service in a dangerous world, the objective must be not to ban foreign operations, but insofar as possible to bring them within a democratic framework.
The remedies are well-known, though difficult. At every level of the Government, accountability will continue to depend upon clear guidelines, timely reporting, honest officials, and dedicated overseers willing to invest the time required to review the conduct of foreign policy.
To this list, H.R. 3665 adds another vital ingredient: penalties for those who insist upon the adoption of their own will over the public's will. And overarching every prescription must be a spirit of cooperation between foreign policy leaders within the executive and legislative branches, the good faith extolled by the Inouye-Hamilton panel
With this mixture, Mr. Chairman, a challenging but reachable goal, the United States can enjoy both democracy and national security.
Thank you, Mr. Chairman.
Mr. Chairman, I am honored to be a member of this distinguished
panel assembled here to examine a proposed law entitled the "Official
Accountability Act" (H.R. 3665).
The purpose of this bill, introduced
by you on November 20, 1987, is "to provide for criminal penalties for
Government officials who commit national security offenses."
consideration of recent foreign-policy violations indicates why a
measure like the one you offer is in order. Foreign policy is a vast
domain and time is limited, so allow me to focus on intelligence
operations--only one portion of whole, yet often at the center of
controversy over the abuse of national-security powers.
Democracy and Intelligence
The central theme in my remarks this morning can be stated
succinctly: democracy and secret intelligence organizations, despite
their seemingly inherent antithesis, can exist safely and effectively
within the same society--but only with the most careful precautions.
This tension between the concern of some, on the one hand, about the
proper supervision of the intelligence agencies and, on the other hand,
a willingness by others to let them operate in full secrecy, lies at the
heart of the dilemma addressed by H.R. 3665.
"While there is a strong
public interest in the public disclosure of the functions of
governmental agencies," a senior official in the Central Intelligence
Agency (CIA) once put it, "there is also a strong public interest in the
effective functioning of an intelligence service."
Democracy and intelligence, in a word, represent values that are in
conflict, pulling one against the other. Democracy rests on the
assumption that government should be conducted openly, that decision
should be preceded by wide public debate, that the rule of law is more
trustworthy than the rule of man, that officials ought to be held
accountable for their acts.
Ours is "a government of laws and not of
men," wrote John Adams into the Massachusetts state constitution in
In contrast, intelligence operations depend upon secrecy and
limited debate, and often involve the violation of ethics and laws in
those countries overseas where U.S. agents operate, as well as the use
of tactics or "dirty tricks" that seem far removed from the accepted
philosophical tenets of democratic theory--lying, sabotage, even
clandestine warfare and assassination in times of peace.
One possible response to the democracy-versus-intelligence dilemma
is to eliminate, or sharply curtail, U.S. intelligence operations. Yet,
to abolish or emasculate the intelligence agencies would be an act of
folly, for while they can--and have--posed a threat to democracy from
within, they also provide a vital protection for democracy against
serious threats from abroad.
Here is the paradox. And from this
paradox comes the central challenge:
to guard against intelligence
excesses anathema to an open society while, at the same time, holding
high the intelligence shield against dangers from beyond these shores.
In the renewed public debate stirred by the Iran-contra scandal of
1986-87, citizens of the United States and their elected representatives
must determine what kinds of intelligence operations they are unwilling
to allow and what operations the nation must tolerate in order to
protect itself in a world filled with enmity, terrorists, and doomsday
weapons. Responsible officials--elected and appointed--must guarantee
through vigorous program review (oversight) that the nation's spymasters
and agents are held accountable and operate firmly within the
Under the provisions of H.R. 3665, those
individuals who transgress these boundaries would, quite properly, be
held criminally accountable for their disregard of the legal standards.
The historical records suggests that the deterrent of criminal sanctions
may be necessary to curb the excessive zeal of some foreign-policy
Intelligence and the Law:
A Stormy History
The modern American intelligence community was established by the
National Security Act of 1947, with amendments in 1949. Prior to the
Iran-contra affair, the history of these secret agencies reflected a
three-staged evolution toward greater democratic control.
phase, the Era of Trust (1947-74), was a time when the intelligence
agencies were permitted almost complete discretion to chart their own
courses, free of meaningful scrutiny by overseers in the Congress or
even the White House.
This state of benign neglect changed dramatically
to the aftermath of a series of articles published in the New York Times
throughout December of 1974.
These articles charged the CIA with the
conduct of unsavory operations against a democratically elected regime
in Chile and, more startling, with "massive" spying at home.
American public itself had become the object of the CIA's dark trades,
as the Orwellian vision of Big Brother moved from the pages of 1984 to
the headlines of the nation's leading newspapers.
The second phase, the Era of Skepticism (1975-76), saw the
intelligence agencies reel under the impact of investigations led by
public officials on Capitol Hill and in the White House, now suddenly
skeptical about the trust they had long placed in America's secret
service. Among intelligence officers, this season of Inquiry is still
remembered painfully as the "Year of the Firestorm" and the time of the
"Intelligence Wars." The investigations released a torrent of
information on the previously invisible side of American government.
The extensive hearings and reports published by the investigators stood
several feet high and chronicled, in chilling detail, the dangers posed
by the intelligence agencies, when misused.
If anyone had forgotten the
perils of hidden and unfettered power--despite the still-fresh
revelations of the Watergate scandal--here were some unpleasant
The third phase, the Era of Uneasy Partnership (1976-86), witnessed
a closer legislative monitoring of the intelligence community and a
heightened public awareness of its mission--a "democratization" of u.s.
The Congress created formal intelligence oversight
committees; intelligence budgets underwent scrutiny by legislators and