APPENDIX B: S. 2525 AND THE NATIONAL SECURITY ACT
ON CIA OPERATIONS WITHIN THE U.S.

The National Security Act of 1947 (50 U.S.C. 403) barred the CIA from exercising "any police, subpeona, enforcement powers, or internal security functions within the United States. Because of excessive secrecy surrounding the CIA and its covert mission, and the consequent lack of public accountability, Congress determined that the agency's focus should be exclusively outward. Title IV of S. 2525 (Section 432 (b)) states that the agency "shall have no police, subpeona or law enforcement powers, nor perform any internal security or criminal investigation functions except to the extent expressly authorized by this Act." The exceptions are numerous.

First, the CIA is permitted to conduct foreign intelligence investigations in the United States directed against foreign persons, a category which includes resident aliens and some citizens. The CIA may also conduct counterintelligence and counterterrorism activities within the United States as are "integrally related" to its activities abroad. These activities may include investigations and preventive actions directed against United States persons as well as foreigners.

Second, the CIA is broadly authorized to conduct investigations in the United States to determine objects of recruitment, possible targets, foreign contacts, and "potential sources", activities now barred by law. See Weismann V. CIA, 565 F. 2d 692 (D.C. Cir. 1977).

Third, the CIA is authorized to conduct investigations to protect its installations and personnel in the United States from "physical threats" and to engage in activities to "counter" espionage or "prevent" terrorism in this country.

The domestic jurisdiction flowing from all of these authorizations is subject to expansion. Because jurisdictional disputes are to be settled independent of the charter's provisions (see § 141 (3) and § 113 (k) ), CIA authority may be further expanded.

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STATEMENT OF MORTON H. HALPERIN, DIRECTOR, PROJECT ON NATIONAL SECURITY AND CIVIL LIBERTIES, BEFORE THE SENATE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, DECEMBER 5, 1975 Mr. Chairman: I consider it an honor and a privilege to be invited to testify before this committee on the question of covert operations. From this committee's unprecedented review of the activities of our intelligence agencies must come a new definition of what the American people will permit to be done in their name abroad and allow to be done to them at home. No problem is more difficult and contentious than that of covert operations.

It appears that I have been cast in the role of the spokesman on the left on this issue. It is an unaccustomed position and one that I accept with some discomfort. It should be clear to the committee that there are a great many thoughtful and articulate Americans whose views on this question are considerably to the left of mine, at least as these terms are normally used. I would not presume to speak for them. Nor, Mr. Chairman, am I speaking for the organizations with which I am now affiliated. I appear as you requested as an individual to present my own views. I believe that the United States should no longer maintain a career service for the purpose of conducting covert operations and covert intelligence collection by human

means.

I believe also that the United States should eschew as a matter of national policy the conduct of covert operations. The prohibition should be embodied in a law with the same basic structure as the stature on assassinations which the committee has already recommended.

These proposals are not put forward because I believe that no covert operation could ever be in the American interest or because I could not conceive of circumstances where the capability to conduct a covert operation might seem to be important to the security of the United States. I can in fact envision such circumstances. However, I believe that the potential for covert operation has been greatly overrated and in my view the possible benefits of a few conceivable operations are far outweighed by the costs to our society of maintaining a capability for covert operations and permitting the executive branch to conduct such operations.

The revelations made by this committee in its report on assassinations are in themselves sufficient to make my case. I will rely on these illustrations not because there are not many others of which we are all aware but rather to avoid any dispute over facts.

The case against covert operations is really very simple. Such operations are incompatible with our democratic institutions, with Congressional and public control over foreign policy decisions, with our constitutional rights, and with the principles and ideals that this Republic stands for in the world.

Let me begin with the last point. The CIA operations described in this committee's assassination report are disturbing not only because murder was planned and attempted, but also because the operations went against the very principles we claim to stand for in the world. In Cuba, the Congo and Chile we intervened in the internal affairs of other countries on our own initiative and in the belief that we had the right to determine for others what kind of government their country needed and who posed a threat to their welfare. We acted not because we believed those that we opposed were the tools of foreign powers kept in office by outside intervention; rather we acted in the face of assertions by the intelligence community that the leaders we opposed were popular in their own lands.

In the Congo our efforts were directed at keeping Lumumba from speaking and keeping the parliament from meeting because we believed that allowing him to speak or allowing the parliament to meet would have meant that Lumumba would be back in office. In Chile we preached to the military the need to ignore the constitution and to over-throw a democratically elected government. We warned that the alternative was deprivation and poverty for the Chilean people.

All of these things were undertaken in the name of the United States but without the knowledge or consent of the Congress or the public. Nor could such consent have been obtained. Can you imagine a President asking the Congress to approve a program of seeking to reduce the people of Chile to poverty unless their military, in violation of the Constitution, seized power; or the President seeking funds to be used to keep the Congolese Parliament out of session so that it could not vote Lumumba back into office; or the authority to promise leniency to Mafia leaders if they would help to assassinate Castro. These programs were kept covert not only because we would be embarrassed abroad, but also because they would not be approved if they were subjected to the same congressional and public scrutiny as other programs. That is one major evil of having a covert capability and allowing our Presidents to

order such operations. The assassination themselves may have been an aberration; the means and purposes of our interventions were not.

Another inevitable consequence of conducting covert operations is that it distorts our democratic system in ways that we are only beginning to understand. Covert operations by their nature cannot be debated openly in ways required by our constitutional system. Moreover, they require efforts to avoid the structures that normally govern the conduct of our officials. One obvious area is lying to the public and the Congress.

We should not forget that the erosion of trust between the government and the people in this Republic began with the U-2 affair and has continued through a series of covert operations including Chile. Whether or not perjury was committedand I see little doubt that it was-it is surely the case that the Congress and the public were systematically deceived about the American intervention in Chile. Such deception must stop if we are to regain the trust needed in this nation; it cannot stop as long as we are conducting covert operations. Given the current absence of consensus on foreign policy goals, such operations will not be accorded the deference they were given in the past. Critics will press as they do now on Angola and Portugal. And administrations will feel the need and the right to lie.

Surely at this point in time it is not necessary to remind ourselves of the certainty that the techniques that we apply to others will inevitably be turned on the American people by our own intelligence services. Whether that extends to assassination has sadly become an open question but little else is.

The existence of a capability for covert operations inevitably distorts the decision making process. Presidents confronted with hard choices in foreign policy have to face a variety of audiences in framing a policy. This in my view is all to the good. It keeps us from straying far from our principles, from what a majority of our citizens are prepared to support, from a policy out of touch with reality. The overt policies of the American government ultimately come under public scrutiny and Congressional debate. Long before that they have been subjected to bureaucratic struggles in which the opponents of the policy have their day in court.

Our intelligence analysts are free to explain why the policy will not work. With covert policies none of this happens. Intelligence community analysts were not told of the plans to assassinate Castro and so they did not do the careful analysis necessary to support their view that it would make no difference. The Assistant Secretary of State for Latin America was kept in the dark about Track II in Chile so he was not able to argue against it and inadvertently deceived the public.

In fact, I would argue that the route of covert operations is often chosen precisely to avoid the bureaucratic and public debate which our Presidents and their closest advisers come to despise. That is prescisely what is wrong with them. Our Presidents should not be able to conduct in secret operations which violate our principles, jeopordize our rights, and have not been subject to the checks and balances which normally keep policies in line.

You will hear, I am sure, various proposals to cure these evils by better forms of control. Such proposals are important, well-intentioned and certainly far better than the status quo, but I have come to believe that they cannot succeed in curing the evils inherent in having a covert capability. The only weapon that opponents of a Presidential policy, inside or outside the executive branch, have is public debate. If a policy can be debated openly, then Congress may be persuaded to constrain the President and public pressure may force a change in policy. But if secrecy is accepted as the norm and as legitimate, then the checks put on covert operations can easily be ignored.

Let me conclude by violating my self-imposed rule to draw only on cases in the assassination report and discuss some rumored current covert operations. I ask you to assume (since I assume that the committee is not prepared to confirm) that the United States now has underway a major program of intervention in Angola and a plan to create an independent Azores Republic should that prove necessary. I ask you to consider how the Congress and the public would treat these proposals if they were presented openly for public debate. Congress could, in principle, vote publicly to send aid to one side in the Angolan civil war as other nations are doing and we could publicly invite the people of the Azores to choose independence and gain our support. But because we maintain a covert operations capability and because such operations are permitted, the President can avoid debate in the bureaucracy and with the Congress and the public. We can be drawn deeply into commitments without our consent and have actions taken on our behalf that we have no opportunity to stop by public pressure or to punish at the polls.

Mr. Chairman, in response to the position I have outlined briefly this morning, one is confronted with a parade of hypothetical horribles-the terrorists with the

nuclear weapons, a permanent oil embargo and the like. To these I would reply in part that such scenarios seem implausible and should they occur the likelihood that covert capabilities could make an important difference also seems remote. As to the consequences of legislating a total prohibition in light of the possible unexpected catastrophe, I am content to call your attention back to the committee's excellent treatment of this issue in your assassination report.

This country is not, in my view, in such dangerous perils that it need continue to violate its own principles and ignore its own constitutional system to perpetuate a capability which has led to assassination attempts, to perjury, and to the subversion of all that we stand for at home and abroad. We are secure and we are free. Covert operations have no place in that world.

Mr. Chairman, let me say again how grateful I am for this opportunity to participate in this historic debate. I have published two articles on this subject which I have attached to this statement and which I request be made part of the record of your hearings.

I look forward to your questions.

Mr. HALPERIN. Mr. Chairman, I think that General Stilwell's statement has really raised the fundamental issue that this committee faces-I tried to deal with it in my statement in a somewhat different way-of how you should go about trying to design the limitations and the authorization of the intelligence agencies. What General Stilwell has done is to point out to you that there are restrictions and limitations put on the intelligence agencies by this bill, and he has suggested that the intelligence agencies would prefer to operate without them. For example, he says they would like to investigate Americans abroad when they have suspicion and questions about their activities.

Now, obviously from the point of view of the intelligence agencies, a free hand and an appeal to responsibility and dedication makes it easier for them to operate. In my view, the record of abuse that has occurred in the past, and the interest this country has in constitutional rights, makes it insufficient for the intelligence agencies and their supporters to say it is harder for us to operate without this; we would like to go after people and target them under these circumstances. What is necessary is a much more searching questioning of whether or not these restrictions will in fact interfere with the kind of intelligence operations that we would like to have.

It is not enough to say we would like to be able to do more. What is necessary is for past intelligence officers, out of their experience, or current intelligence officers, to come forward with specific, concrete cases, specific, concrete illustrations of what they would reasonably like to be permitted to do, and what they would not be able to do under the provisions of this bill, and to give some kind of an assessment of the cost to effective intelligence collection, to effective intelligence operation of the restrictions that are contained in the bill.

Now, I have not found in the statement, as I have read it and listened to it, any such analysis. What we have is simply the assertion that Mr. Helms would not want to be Director if these restrictions were in effect. We have the assertion that the intelligence agencies could not operate effectively if these restrictions were in effect. What we do not have are▬▬

The CHAIRMAN. Dr. Halperin, just for your information and for others, the committee is presently engaged, with the cooperation, understanding and full participation on the part of the President, with the top people in the intelligence community across the board

in just this kind of point by point dialog, so that we know where there are specific problems, where inadvertently we might provide the kind of provisions that General Stilwell is talking about that would make it impossible to do the job. I should note that.

Mr. HALPERIN. Well, I welcome that, Mr. Chairman, and I would urge you to make as much of that public as you can. I would also urge that in trying to strike the balance in the bill, you recognize that abuses may hurt us in the future, and it is not simply enough to decide where the balance should be struck and then try to make legislation to suit it. One must ask the question also, are there possible loopholes here? Are there possible ways in which the authority in the bill has been abused in the past and might be abused in the future?

To say that we should rely in the future on the responsibility and dedication to the Constitution of our elected officials or officials of intelligence agencies seems to me to ignore the critical lesson of the past, that those people given the responsibilities will be tempted to abuse them.

We are told that that period is over, yet just in the last couple of months we have had a Federal district court judge rule that the current Attorney General and the current FBI conducted an electronic surveillance on an American and on a foreign national resident in the United States in violation of the Constitution and of the Safe Streets Act, in that a criminal wiretap, a wiretap was continued for the purpose of a criminal prosecution, was conducted without a warrant. Now, that occurred, given the existence of these committees. It occurred, given the dedication of the current Justice Department and the White House to protection of constitutional rights. We have had a judge rule that those wiretaps violated rights and that the evidence gathered in that should be suppressed. So I think there is no reason to think that the simple dedication to the Constitution is enough.

Let me turn briefly to some of the specific items contained in my statement. First, on covert operations, it seems to me that the provision contained in S. 2525 does not reflect the conclusions. drawn by the Church committee, the lessons of that analysis. As I read them, they simply say that covert operations should be conducted when it is important to the security of the United States to do so. It seems to me that the committee ought to look very carefully at going as far as the Church committee recommended, if not further, and that is to say that this is an extraordinary technique that we should only use when the survival of the Nation is in fact at stake.

What it comes down to is an alternative between a situation where we are always conducting some covert operations because there are always some clandestine activities that are important or will be judged to be important, or whether that technique raises sufficient problems for our constitutional democracy that if they should not be abolished, which is what my view is, they should at least be restricted, as the Church committee recommended, to very, very rare and very extreme situations.

If you look at the current world, covert operations are in fact prohibited in one country, and that is Angola, by the Clark amendment. The President has suggested that he is somewhat unhappy