Act, the Arms Export Control Act, the Intelligence Oversight Act, and the NSC provisions of the National Security Act. It could also address questions about the making of international agreements, internal intelligence agency control procedures, and judicial review of executive actions. Now is not the time to detail every provision of such a charter. I do attempt to describe model provisions more fully in my forthcoming article. For present purposes, let me point out that such legis goals: first to increase executive restraint, for example, by mandating internal executive branch review of legal opinions, something that did not occur during the Iran-Contra affair; second, to lessen Congressional acquiescence, for example, by creating within Congress a core group of members who could meet regularly with the President to consult on foreign affairs matters; and, finally, by increasing incrementally the participation of the courts in the process. This last change could result from inclusion of Congressional standing provisions in the bill, creation of private causes of action, and provisions stating that violations of the new national security laws would not be nonjusticiable political questions. Where does this bill before us fit into the broader picture? As drafted, it would impose criminal penalties upon U.S. Government officials. I understand that other witnesses today will speak to the constitutionality of the bill. In my written statement, I make a number of specific comments about specific provisions of the bill, but let me just speak briefly to the wisdom of the bill as a matter of public policy. As a matter of public policy, the main advantage of this bill is that it would provide judicially enforceable criminal remedies for official violations of foreign affairs laws. When I said earlier that Congress has too often acquiesced in the President's actions, I meant in part that Congress has too frequently employed ineffective legislative tools. Most of the post-Vietnam era statutes that I have described used procedural devices to try to bring the Executive into control. These include: sunsetting, reporting, and consultation requirements; committee oversight procedures; appropriation limitations; and before 1983, in the Chadha case, the legislative veto. But as you know, in 1983, the Supreme Court invalidated the legislative veto. What the Iran-Contra affair shows, furthermore, is that reporting and consultation requirements and appropriation limitations simply don't work when the executive branch is consciously trying to avoid them. In short, when executive officials take knowingly unlawful actions, none of the Congressional control devices that are currently being used impose direct costs on those officials. That is what this bill would do. And that, I think, is a major plus. My main concern about the bill, as it is currently drafted, is that it extends beyond this narrow-and I think, desirable-purpose, to chill other types of legitimate activity. I have a number of concerns in this regard, which I mention on pages 14 and 15 of my prepared statement. Let me just mention five. First, the bill nowhere defines its most critical term, which is "intelligence activity." Second, by holding liable private persons who receive compensation from the United States for any business that results in a violation of the law, the law imposes a very heavy burden on private parties to fa miliarize themselves with all Executive orders, statutes and treaties in force, and might dissuade them from doing business with the Government. Third, the bill also leaves unclear whether a Government official who plans activities that might violate a statute that is about to expire, like an appropriations rider, or an Executive order which might be repealed, should be prosecuted. Fourth, I am troubled by the breadth of the provision that criminalizes intelligence activities that violate international agreements, because it is well-established that Congress may enact statutes that violate our obligations under international agreements, and under this bill, executive branch officials who took intelligence activities to enforce a statute which in fact violated a treaty, could conceivably be charged criminally. Fifth and finally, I am a bit concerned about the provision in the bill that denies defendants the defense of superior orders unless they did not know or reasonably could not have been expected to know that the act ordered was unlawful. That provision spares true underlings from prosecution but hits hard at high executive officials just below the President. The Iran-Contra affair does reveal the dangers of permitting high executive officials like Admiral Poindexter or Lt. Col. North to walk the line. But, on the other hand, we don't want to deter such officials too much and thereby encourage timidity in foreign policy-making. Let me caution that none of these objectives are fatal. I think that most of them could be cured by revising the bill to add more detailed provisions on enforcement, clearer definitions of intelligence activities and the term "planning of, and preparation for" such activities. But to reiterate my main point, let me say that while memories of the Iran-Contra affair are fresh, I think that Congress should be seeking to enact broader and more ambitious legislation than this, namely legislation which restructures the incentives that executive branch officials face when they are considering whether or not to violate or circumvent existing foreign affairs laws. In modified form, I think this proposal could form an important part of that national security charter. In closing, let me say that Congress has a window of opportunity to reassert itself in the foreign affairs process that it has not had since 1974. At that time, Congress exploited the policy by legislating a broader role for itself across the board in foreign affairs. Since the Iran-Contra affair, Congress has had a similar opportunity and has just squandered it. If Congress wants to preserve its role in national security affairs, the time could not be more ripe for it to take the legislative initiative. To those who would say that only a law professor could think it politically possible to draft such wide-ranging legislation, let me just say that the legislative proposals are there; all that is required is Congressional interest. Even as we speak, Senator Cohen's bill on intelligence oversight has passed the Senate by a vote sufficient to override the President's veto. The companion Stokes bill has been reported out of the House Intelligence Committee, and is currently in hearings in the House Foreign Affairs Committee. Senators Byrd, Nunn, Warner and Mitchell have introduced very promising legislation to reform the War Powers Resolution. Senator Biden and Congressman Levine have introduced promising legislation to reform the Arms Export Control Act. And Senator Specter has proposed a number of bills that would make structural reforms of the national intelligence system. What Members of Congress need to recognize is that all of these proposals should be integrated because they all reflect facets of the same problem, namely, the need to restore an institutional-constitutional balance in foreign affairs. Even if only partly successful, a Congressional attempt to consider omnibus legislation in the national security field would at least address the right precedent, the right problem and the right prescription. In my judgment, such a legislative effort could occur any time in the next few years, during the early years of the new administration. A Republican President could use the concept of a national security charter as a way of putting the Iran-Contra affair behind him; a Democratic President could use it as a means of showing how serious he is about foreign policy reform. But even if impetus for national security reform does not come from the Presidential candidate, there is no reason why it shouldn't come from Congress itself. In recent years, Congress has undertaken a number of broad-scale reform efforts: The Tax Reform Act of 1986, the deregulation movement of the late seventies, the environmental reform movement of the late sixties, just to name a few. The problem of national security reform is at least as important, if not more important, than all of these. In other areas of foreign policy, Congress has enacted very important legislation without Presidential leadership or over Presidential vetos. Take, for example, the 1986 South African sanctions bill; the War Powers Resolution; the Trade Act of 1974, all of which passed into law without Presidential leadership. So, even without strong Presidential leadership in the next few years, during this window of opportunity, Congress, if it is committed to bipartisan national security reform, could pass a legislative charter that could redefine decisionmaking responsibility in national security matters for the next 40 years. In short, the release of the Iran-Contra Committee's report last fall should have marked the beginning, and not the end, of Congress' efforts in this field. Let me close by quoting Justice Jackson's concurring opinion from the Steel Seizure case, which I think sums up our situation here today: "A crisis that challenges the President equally or perhaps primarily challenges Congress. We may say that the power to legislate belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers." Gentlemen, you have several years left. I hope you will exploit this opportunity to meet the national security crisis before it slips through your fingers again. Thank you. Mr. CONYERS. Well, thank you very much. You made a very important contribution to our analysis of the legislation. [The statement of Mr. Koh follows:] Statement of HAROLD HONGJU KOH Associate Professor of Law, Yale University On H.R. 3665, the Official Accountability Act UNITED STATES HOUSE OF REPRESENTATIVES June 15, 1988 Chairman Conyers and members of the Subcommittee: I am I am grateful for this opportunity to offer you my views on H.R. 3665, the Official Accountability Act, and more broadly on the need for new national security legislation in the wake of the Iran-Contra Affair. an Associate Professor of Law at the Yale Law School, specializing in international law and the Constitution and Foreign Affairs. Before coming to Yale, I served from 1983 to 1985 as an Attorney-Adviser at the Office of Legal Counsel of the Department of Justice, where I worked primarily on matters relating to international and foreign affairs law. Let me first applaud both the Subcommittee and its chairman for holding these hearings, which are long overdue. I am in the process of completing an article that will appear shortly in the Yale Law Journal, which analyzes the recently completed House and Senat Select Committee investigations of the Iran-Contra Affair.1 In that article, which I will submit upon publication as a supplement to this testimony, I argue that two competing conventional wisdoms about the Iran-Contra Affair have recently taken hold among Members of Congress and the American public. The first, 1See Koh, "Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair," 97 Yale L. J. (No. 7) (forthcoming June 1988). 2 suggested by the reports of both the Tower Commission and the majority members of the Iran-Contra Committees, is that the Iran-Contra Affair resulted primarily from a failure of people, not laws. 2 Under this view, Congress need not now consider new national security legislation, because, in the majority's words, "Congress cannot legislate good judgment, honesty, or fidelity to law."3 A second, contradictory conventional wisdom, which the Iran-Contra committees' minority members have asserted, is that the Iran-Contra hearings represented yet another effort by Congress to "micromanage” foreign policy by legalizing foreign policy differences between the political branches of the government. According to this view, a congressional effort to enact new national security legislation would not only be unnecessary, but in the minority's words, either "unconstitutional and unwise" or "unconscionably meddlesome." جا In my judgment, both of these conventional wisdoms are false. The first suggests that new laws are unnecessary because our national security system is ultimately self-regulating; the second suggests that we need no 2See Report of the Congressional Comms. Investigating the Iran-Contra Affair, S. Rep. No. 216, H. R. Rep. No. 433, 100th Cong., 1st Sess. 423 (1987) [hereinafter Iran-Contra Report.]("the Iran-Contra Affair resulted from the failure of individuals to observe the law"); President's Special Review Board, The Tower Commission Report 4 (New York Times ed. 1987) ("The problems we examined in the case of Iran/Contra caused us deep concern. But their solution does not lie in revamping the National Security Council system."). 3Iran-Contra Report, supra note 2, at 423. The vast bulk of the 690-page Report recounts facts and legal violations, with only four and one-half pages of the majority report and three pages of the minority report discussing recommendations for legislative reform. See id. at 423-27; 583-85. 4Id. at 583 (minority report). |