4

1 "8 2905. Investigation and prosecution

2

"Notwithstanding any other provision of law, investiga

3 tions and prosecutions with respect to offenses under this

4 chapter shall be carried out in the manner provided in chap

5 ter 40 of title 28.".

6 SEC. 3. CONFORMING AMENDMENT.

7

The table of chapters for part I of title 18, United 8 States Code, is amended by adding at the end the following

9 new item:

"123. National security offenses..

2901".

HR 3665 IH

Mr. CONYERS. Less than two decades ago, the very foundations of this Nation were shaken by members of the executive branch who believed that they could commit almost any crime, from secret bombings of foreign leaders and the burglary of homes and offices of American citizens, all in the name of a nebulous concept of "national security."

Americans were shocked by the disclosures of the Watergate investigations, the Ervin and Church committee hearings in the Senate, and the Pike committee investigations in the House. A once-hallowed Director of the Federal Bureau of Investigation, his reputation was tarnished by those revelations. And a once-popular President was forced from office in disgrace.

In every instance, it turned out, the illegal behavior had been conducted under the cover of covert intelligence operations alleged to be necessary to defend our national security; and by definition, required to be kept secret from the American people they were allegedly designed to protect.

From the FBI's wiretapping of Dr. Martin Luther King, Jr., the breaking and entering into the office of Dr. Ellsberg's psychiatrist, to the murder of the Chilean President Salvador Allende, and the bombing of Cambodia, the perpetrators justified the breaking of both domestic and international law in the name of "national security."

Along with many of my colleagues, I was appalled by what we discovered at that time, and joined in a number of legislative efforts to put a stop to the abuses of legality by the intelligence community.

In 1975, under the leadership of the gentleman from Wisconsin, Mr. Kastenmeier, we introduced a bill entitled the Official Accountability Act, to provide criminal penalties for public officials who engaged in illegal conduct in violation of our international agreements; and over the next 5 years, we made numerous efforts to enact charters for the FBI and the CIA which would restrain their resort to unlawful measures in pursuit of their objectives.

The truth is that most of these efforts failed. They failed in the main because their opponents insisted they were no longer necessary, that the executive branch agencies had learned their lessons, and would in the future guard against similar abuses.

The FBI avoided Congressional adoption of a charter by adopting its own guidelines. The CIA and other foreign intelligence agencies were permitted to continue to conduct covert operations so long as they informed Congressional monitors.

Recent revelations conclusively demonstrate that none of these self-policing mechanisms have been effective.

Despite the Congressional notification provisions of the Intelligence Oversight Act, the executive branch secretly carried out a program of trading arms for hostages to the terrorist government of Iran while publicly repudiating such a policy. Had the program not been exposed, there is no reason to believe that Congress would have ever been informed.

A White House-based operation secretly financed rebellion in Nicaragua for a period of several years in the face of a specific Congressional prohibition on the use of public funds or resources for such purposes. Not only was this policy inconsistent with our

domestic law, but aspects of it were found to be illegal or improper, in terms of our international commitments as well.

The FBI, in apparent violation of its own guidelines, because some of the guidelines were secret, conducted a 5-year long investigation into the lawful, constitutionally-protected activities of opponents of the administration's Central American policy. Those guidelines are still partially classified.

As the final report of the Iran-Contra Select Committees observed, the Reagan administration officials "viewed the law not as setting boundaries for their actions, but raising impediments to their goals."

Which brings us full circle to where we are in the post-Watergate era. Once again, we must confront the question of enforcing legal accountability upon those who are themselves responsible for the execution of the laws.

It is true that part of the answer may yet be supplied by special prosecutors who have been appointed to investigate official wrongdoing. But we may also anticipate that any prosecutions are going to be defended with claims that the accused either did not have fair notice that their conduct was criminal or that their behavior was authorized by a higher authority.

For example, we have already been witness to the public proclamations of Lieutenant Colonel Oliver North that he believed the Presidential authority under which he operated authorized him to ignore Congressional mandates.

And on many occasions, we were subjected during the hearings to the President's own protestations that he had heard no evidence of criminal violations by anyone involved in Iran-Contra.

This is why it is absolutely essential that the Congress attempt to establish guidelines of personal accountability for Government personnel, enforceable by criminal sanctions, starting with the intelligence community, whose activity of lawlessness in some instances has been clear and undeniable.

This is why I have introduced the Official Accountability Act, H.R. 3665, which is based on the premise that we need a method of forcing the individual officials within our government to assume a greater and more carefully defined responsibility for their acts and for policies that they advance in the name of the United States. They must relearn the lesson that the Founders of this country taught us, that unchecked powers lead to arrogance and arrogance frequently leads to tyranny.

The bill before us establishes a code of legal responsibility for civilian and military officials charged with the operation of national security policy. It would do so by explicitly criminalizing covert operations which violate any statute or Executive order in force, or international agreements to which the United States is a party. And it establishes an institutional mechanism for the investigation and prosecution of violations of those laws.

It could eliminate any possible ground for a Lieutenant Colonel to contend that he didn't know that it was illegal for him to ignore the Boland amendment or even for an Attorney General to authorize non-notification of Congress of illicit arms sales.

This bill seeks to take the first step toward return to personal accountability.

We also are reminded that there were a number of ways that the criminal statutes may have been in violation by Iran-Contra, which would lead us to the criminal justice method of prosecuting, and this is why we have proposed this Official Accountability Act.

There would be actually, the only things available would be rather garden-variety criminal statutes, misuse of public money, fraud and false statements, fraudulent claims against the Government, prosecution under the Anti-Deficiency Act, conspiracy to defraud the United States, misuse of public money, fraud and false statements; control of exports; registration of foreign propaganda; the neutrality laws; obstruction of justice; all of these are some of the criminal statutes that might be obviated if there were an act that stems from the official accountability ideas of the seventies, which this new bill that I bring to you today for examination would tailor considerably from the former Kastenmeier model.

And we are very pleased to begin hearings on this subject with a very distinguished set of panelists.

Yes? Before we bring the panelists on, I would like to recognize the ranking minority member from Pennsylvania, Mr. George Gekas.

Mr. GEKAS. Yes, I thank the Chair. I appreciate the introductory remarks of the chairman and agree with a great deal of what he said, and wonder about a lot of other things that he said in the context of what we are attempting to do.

For instance, the recitation of the laws that he brought at the end of his discourse leads me to believe that we do have a panoply of weaponry available to us to deal with most activity by any official of the United States Government.

To now consider whether we should add this other feature, which is inherent in the bill, is a separate question. But it gives me relief to know there are many statutes which can be brought to bear on many of these actions of any public official. I want to thank the chairman for bringing them into the record-I knew about a handful of them, now I know them all. Maybe we need fewer laws.

But the point is that we do have a wide array of possibilities of attacking this particular syndrome.

The other thing that I was quizzical about in listening to the chairman is his recitation of the ills of the Reagan administration, the Nixon administration, having to do with various news headlines that were generated over these two administrations. His allusion to the Iran-Contra thing is peculiar with regard to what we are attempting to do here, or what we are overseeing here.

To my knowledge, first of all, there was-now, it is questionable as to facts and times and all of that-but the President of the United States did make a finding as to why he initiated the Iran matter, namely trying to determine who the moderates are. It was not an intelligence activity. That doesn't make it unimportant, but what we are trying to determine here is, with the Conyers bill, is those who engage particularly in intelligence activity, because that is what the prohibition is, what we are talking about, the preparation, initiation and account of any intelligence activity.

Iran and the hostages, the Ayatollah, and the moderates, and Ollie North, and the weapons, and the flights, and all of that, bolstered by-and this is subject to debate-findings made by the

President of the United States as to the necessity of trying to open up avenues of approach to the post-Khomeini government, that is something different.

Now, there may be illegal activity there, and those statutes that the gentleman from Michigan has recited may fall into place in any one of those particulars.

With respect to the Contra situation, it is still debatable, and the Contra hearings panel was not able to agree as to the legal efficacy of the Boland amendment and whether or not Ollie North or Poindexter were, as national security agents, in the National Security Council, whether they, in effect, were covered by the Boland Amendment, because it was strictly to be applied to the intelligence-gathering groups, and on and on.

I can argue and debate all these particular assertions made by the chairman. I will not do so, except I am doing so. But I want to focus-which I think is a correct thing to do—on the specifics of a national security violation that should inexorably lead to taking some action against the individual in Government who violates such things.

But at the same time, I tell you now, and I am very keenly, almost emotional about the fact that our national security requires strong intelligence, covert capabilities, and nothing is going to sway me from bolstering them, supporting those, and making sure that they remain a focal point of our national security mechanism.

And if I feel that the end, what we are leading to is a defabrication of our intelligence operations, or our need for national security to engage in covert and intelligence operations of the type required to keep our Nation secure, I will be opposing such themes.

Thank you, Mr. Chairman.

Mr. CONYERS. We have documents, communication from Stansfield Turner and from Clark Clifford, which are discussing the bill before the subcommittee. And without objection, their communications will be entered into the record.

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