INTRODUCTION TO SEPARATE VIEWS OF SENATORS JOHN TOWER, HOWARD H. BAKER, JR., AND BARRY M. GOLDWATER Our mutual concern that certain remedial measures proposed by this Committee threaten to impose undue restrictions upon vital and legitimate intelligence functions prevents us, in varying degrees, from rendering an unqualified endorsement to this Committee's findings and recommendations in their entirety. We also perceive a need to emphasize areas of common agreement such as our unanimous endorsement of intelligence reforms heretofore outlined by the President. Therefore, we have elected to articulate our common concerns and observations, as viewed from our individual perspectives, in separate views which follow. (367) JOHN TOWER, Vice Chairman. BARRY M. GOLDWATER. SEPARATE VIEWS OF SENATOR JOHN G. TOWER, VICE CHAIRMAN When the Senate mandated this Committee to conduct an investigation and study of activities of our Nation's intelligence community, it recognized the need for congressional participation in decisions which impact virtually every aspect of American life. The gravamen of our charge was to examine the Nation's intelligence needs and the performance of agencies charged with intelligence responsibilities, and to make such assessments and recommendations as in our judgment are necessary to maintain the delicate balance between individual liberties and national security. I do not believe the Committee's reports and accompanying staff studies comply fully with the charge to maintain that balance. The Committee's recommendations make significant departures from an overriding lesson of the American experiencethe right of American citizens to be free is inextricably bound to their right to be secure. I do not question the existence of intelligence excesses the abuses of power, both foreign and domestic, are well documented in the Committee's report. Nor do I question the need for expanded legislative, executive, and judicial involvement in intelligence policy and practices the "uncertainties as to the authority of United States intelligence and related agencies" were explicitly recognized by Senate Resolution 21. Nevertheless, I question, and take exception to, the Committee's report to the extent that its recommendations are either unsupported by the factual record or unduly restrict attainment of valid intelligence objectives. I believe that the 183 separate recommendations proposing new detailed statutes and reporting procedures not only exceed the number and scope of documented abuses, but represent over-reaction. If adopted in their totality, they would unnecessarily limit the effectiveness of the Nation's intelligence community. In the area of foreign intelligence, the Committee was specifically mandated to prevent "... disclosure, outside the Select Committee, of any information which would adversely affect the intelligence activities .. of the Federal Government." In his separate view, Senator Barry Goldwater clearly points up the damage to our efforts in Latin America occasioned by release of the "staff report" on covert action in Chile. I objected to releasing the Chile report and fully support Senator Goldwater's assessment of the adverse impact of this "ironic" and ill-advised disclosure. (369) 68-786 - 76 - 25 Another unfortunate aspect of the Committee's foreign report is its response to incidents of lack of accountability and control by recommending the imposition of a layering of Executive Branch reviews at operational levels and needless bifurcation of the decisionmaking process. The President's reorganization which centralizes foreign intelligence operations and provides for constant review and oversight, is termed "ambiguous." Yet the Committee's recommended statutory changes would [in addition to duplication and multiplication of decisions] add little except to insure that the existing functions set up by the President's program were "explicitly empowered," "reaffirmed" or provided with "adequate staff." By concentration upon such details as which cabinet officer should chair the various review groups or speak for the President, the Committee's approach unnecessarily restricts Presidential discretion, without enhancing efficiency, control, or accountability. The President's reorganization is a thorough, comprehensive response to a long-standing problem. It should be supported, not pilloried with statutory amendments amounting to little more than alternative management techniques. It is far more appropriate for the Congress to place primary legislative emphasis on establishing a structure for Congressional Oversight which is compatible with the Executive reorganization while eliminating the present proliferation of committees and subcommittee's asserting jurisdiction over intelligence activities. Another area in which I am unable to agree with the Committee's approach is covert action. It would be a mistake to attempt to require that the Congress receive prior notification of all covert activities. Senator Howard Baker repeatedly urged the Committee to adopt the more realistic approach of obligating the Executive to keep the Congress "fully and currently informed". I believe any attempt by the legislative branch to impose a strict prior notification requirement upon the Executive's foreign policy initiatives is neither feasible nor consistent with our constitutionally mandated separation of powers. On the domestic front the Committee has documented flagrant abuses. Of particular concern were the political misuses of such agencies as the Federal Bureau of Investigation and the Internal Revenue Service. However, while thoroughly probing these reprehensible activities and recommending needed changes in accountability mechanisms, the Committee's "corrective" focus is almost exclusively on prohibitions or limitations of agency practices. I hope this approach to remedial action will not be read as broad criticism of the overall performance of the intelligence community or a minimization of the Committee's own finding that “. . . a fair assessment must place a major part of the blame upon the failures of senior executive officials and Congress." In fact, I am persuaded that the failure of high officials to investigate these abuses or to terminate them when they learned of them was almost as reprehensible as the abuses themselves. A further objectionable aspect of the Committee's approach is the scope of the proposed limitations on the use of electronic surveillance and informants as investigative techniques. With respect to electronic surveillance of Americans suspected of intelligence activities inimical to the national interest, the Committee would limit authority for such probes to violations of specific criminal statutes. This proposal fails to address the real problem of utilizing electronic surveillance against myriad forms of espionage. A majority of the Committee recommended this narrow standard while acknowledging that existing statutes offer inadequate coverage of "modern forms of espionage." The Committee took no testimony on revision of the espionage laws and simply proposed that another committee "explore the necessity for amendments." To prohibit electronic surveillance in these cases pending such revision is to sanction an unnecessary risk to the national security. In adopting this position the Committee not only ignores the fact that appellate courts in two federal circuits have upheld the Executive's inherent authority to conduct such surveillance, but also fails to endorse the Attorney General's comprehensive proposal to remedy objection to current practices. The proposed safeguards, which include requirements for the Attorney General's certification of hostile foreign intelligence involvement and issuance of a judicial warrant as a condition precedent to electronic surveillance, represent a significant expansion of civil liberties protections. The proposal enjoys bi-partisan support in Congress and I join those members urging prompt enactment. I am also opposed to the methods and means proposed by the Committee to regulate the use of informants. Informants have been in the past and will remain in the future a vital tool of law enforcement. To adopt the Committee's position and impose stringent, mechanical time limits on the use of informants particularly regarding their use against terrorist or hostile foreign intelligence activities in the United States would be to place our faith in standards which are not only illusory, but unworkable. In its overly broad approach to eliminating intelligence abuses, the Committee report urges departure from the Congress' role as a partner in national security policy and comes dangerously close to being a blueprint for authorizing Congressional management of the day-today affairs of the intelligence community. Whether this management is attempted through prior notification of a shopping list of prohibitive statutes and regulations, it is a task for which the legislative branch of government is ill-suited. I believe the adverse impact which would be occasioned by enactment of all the Committee recommendations would be substantial. Substantial segments of the Committee's work product will assist this Congress in proceeding with the task of insuring the conduct of necessary intelligence activities in a manner consistent with our obligation to safeguard the rights of American citizens. However, we must now step back from the klieg lights and abuse-dominated atmosphere, and balance our findings and recommendations with a recognition that our intelligence agencies and the men and women who serve therein have been and will always be essential to the existence of our nation. |