These, as I have said, are points I have discussed in print and, for that reason, I forebear from trespassing further on your patience. I will, of course, be glad to discuss them further if any member of the Committee should desire.

Finally, simply as a matter of good taste, I would urge the deletion of Section 202(2) (p. 93) which is a finding of fact that smacks too much of self-flaggellation and which is highly dubious on the merits. I don't know that anybody's freedom of speech has been inhibited or that the integrity of our free institutions has been impaired. This goes far beyond the statement that there have been abuses and paints a picture of a democracy sliding into totalitarianism and that is simply not our situation by any stretch of the imagination.

The language of that section suggests an attitude that seems to underlie the philosophy of S. 2525 and which I think is wrong. It is the view that American intelligence is the primary threat to American liberties and hence must be closely confined so that not even the possibility of abuse exists. My own view is that the American intelligence community has already been severely chastised for past abuses, is well under control, and that the primary threat to American liberties is rapidly growing Soviet strength and agressiveness, which includes massive intelligence activity within the United States. Soviet intelligence is violating the law and the privacy of American citizens to a degree never dreamed of by our intelligence agencies.

The problem of abuses by our intelligence agencies has been very largely cured and that has been accomplished without a law such as the one S. 2525 contemplates. Both the experiences of the past few years and the executive branch guidelines now in place adequately guard us for the future. We ought not to hamper the effectiveness of American intelligence efforts further by drafting a complex code that by its nature cannot adequately address the unknowable problems and circumstances ahead. Perhaps the time has come to ask what can be done instead to strengthen and make more effective the American intelligence agencies.

STATEMENT OF ROBERT H. BORK, PROFESSOR OF LAW, YALE

UNIVERSITY

Mr. BORK. Mr. Chairman, I am pleased to be here at the invitation of the committee to discuss certain constitutional questions in connection with S. 2525, the National Intelligence Reorganization and Reform Act of 1978.

I will make some changes and some interpolations in the prepared text that you have before you as I go along.

It seems to me that S. 2525 is a really heroic effort to cope by law with certain problems that have arisen, and much of it seems to me a useful response. I think it is good that the bill authorizes important intelligence activities, and good that it responds to certain abuses of the past and attempts to prevent their recurrence. But I want to express some doubts about three aspects of S. 2525. These doubts are partly of a policy nature, but they rise to the magnitude of constitutional doubts. Perhaps, unlike Professor Emerson, I don't find the existing case law sheds a great deal of light on the problems we face here. Arguments, I think, from constitutional principles which have never been fully delineated by the courts are necessary. There will be other areas of disagreement as I go along.

Three aspects of S. 2525 that I have serious doubts about are: first, the attempt to control the details of intelligence operations; second, the introduction of judges and a warrant procedure into the conduct of foreign intelligence surveillance, electronic and otherwise; and third, the amount of reporting to be done to groups outside the intelligence community.

The detailed control of intelligence activities seems to me both unwise and in all probability unconstitutional in that it invades Presidential powers under article II of the Constitution. Title I of

the bill for example, contains in section 132 rather extensive restrictions on the categories of persons who may be used in intelligence activities, and in section 135, extensive prohibitions against particular forms of special activities.

Similar attempts at detailed control of activities occur in titles II and III. For example, section 213 of title II limits the collection of foreign intelligence concerning a U.S. person believed to be engaged in espionage or other clandestine intelligence activities to occasions when there is or may be a violation of the U.S. criminal code. That severely and unnecessarily limits foreign intelligence. It may be important to know who is engaged in gathering information on behalf of a foreign power, even though there is no indication that a violation of criminal law is imminent or likely. It may be important that we know what foreign intelligence networks exist. The criminal law proviso sounds innocuous to some people, but it is not, and is an unjustifiable hindrance to sound intelligence practice.

Similarly, section 219(3) which limits collection of foreign intelligence that a person may have, to interviews of any other person to whom he may have voluntarily disclosed such information strikes me as too limiting. Should that limitation apply under all circumstances whatever, I suppose that many circumstances might arise in which that would be not a principle we ought to adhere to. Again, section 241 sounds attractive, but I think it is misguided. That section provides that no intelligence activity may be directed against any U.S. person solely because of his exercise of any right protected by the Constitution. Suppose the person is advocating the violent overthrow of the U.S. Government or he is advocating genocide, the extermination of Americans belonging to particular racial or ethnic groups. Suppose, further, that the advocate is not a solitary crank but belongs to an organized group, one perhaps with links to a foreign power. That advocacy, as long as he is not inciting to imminent violence, that advocacy is now his constitutional right though it once was not. The Supreme Court has changed the law of the First Amendment in this area. Does the fact that we must let him speak mean that we may not keep that person and his group under any form of surveillance, however mild? Persons or groups who advocate violence may be quite dangerous. In the past groups advocating violent overthrow of the government have been used to recruit people for illegal underground work. It is perverse to say that no intelligence agency may keep an eye on such persons and organization.

These are only examples of attempts at specific controls of activity that seem to me unwise, and do not take into account all the variations of circumstances that the world will throw up at us. They are well-intentioned but overly rigid attempts to safeguard first amendment and fourth amendment rights.

We all know the application of the first and the fourth amendments, like all the great provisions of the Constitution, depends heavily upon particular circumstances, the weighing of the particular facts and interests involved. Flat rules announced in advance are not sufficiently sensitive to these problems. Other witnesses have pointed out that detailed judgments made now may be wholly inappropriate in a world that changes rapidly and unpredictably.

Mr. Clark Clifford, for one, testified before this committee and gave objections to attempts to control specifics that seem to me to be absolutely correct on policy grounds. I won't repeat them here, but the policy grounds Mr. Clifford mentioned seem to me to shade into constitutional grounds.

The constitutional issue that arises out of these policy considerations may not have been canvassed in testimony before you. The issue arises under article II of the Constitution and concerns the propriety or legality of Congress legislating in such detail about the conduct of American intelligence activities by the President. I am talking, not about constitutional law in the hard-and-fast sense of rules already enunciated by the courts in particular fact situations, although some of these issues may be litigated eventually. I am speaking of constitutional values and principles that ought to be respected in the framing of legislation, and the point is essentially a separation of powers point.

The conduct of intelligence activities is basically a function of the executive branch of our Government and comes within the constitutional powers of the President. It draws upon both the President's role as Commander in Chief and upon his role as leader in the conduct of foreign affairs. This is not to say that the Constitution excludes Congress from these areas. It has a role to play, not only in intelligence operations, but in the declaration and conduct of wars and in the conduct of foreign policy. I do mean to say that the constitutional roles of the Congress and the President are very different, and that that difference flows from their differing institutional capabilities.

Congress was intentionally designed by the framers of the Constitution as a deliberative assembly. Its very numbers and necessary methods of proceeding render it incapable of swift, decisive, and unanticipated response to the emergencies the Nation must face. The framers, it must be remembered, acted against a history of legislative supremacy under the Articles of Confederation, and they found that experience extremely unsatisfactory. Their reaction was to create a strong Presidency. The President was to lead in those areas that required managerial rather than legislative decisions.

I would like to offer an analogy which suggests the constitutional impropriety of some aspects of S. 2525. The analogy is to the respective roles of the President and the Congress in the declaration and conduct of war. Congress clearly has the constitutional power to declare war or to refuse to declare war. It also has the power to appropriate funds for armed conflict or refuse to do so. Congress has, in fact, the raw constitutional power to disband the Armed Forces altogether and leave the President as a Commander in Chief in name only, without a single platoon to maneuver. Yet-and this is the crucial point-Congress does not lawfully obtain tactical control of the Armed Forces because of its enormous legislative powers, including the power to say whether or not there shall be any Armed Forces.

Congress in 1941 declared war against Germany, Italy, and Japan and it appropriated funds and conscripted men to fight the global conflict it contemplated. That was its undoubted constitutional right. The war could not have been prosecuted by the Presi

dent otherwise, no matter how important he might think entry into the war was to our national security. But let me take one step down from those overall decisions and ask how far Congress, power extends. Suppose that Congress, learning that President Roosevelt and General Marshall had decided to concentrate first on the European theater, had assumed the power by statutory enactment to direct that England and the Soviet Union be left unaided against Germany and Italy and that our entire force be directed against Japan. If Congress acted because it considered this course strategically sounder than that chosen by the President, can there be much doubt that this statute would have been unconstitutional as an invasion of the President's prerogatives as Commander in Chief. But I don't really have to argue that case because S. 2525 is a much more detailed regulation of intelligence tactics. Let me therefore move the analogical case down a notch. Could Congress, within its constitutional powers, have ordered the Doolittle raid on Tokyo, directed that France be invaded from the south rather than through Normandy, or directed that the airborne troops at Bastogne surrender during the Battle of the Bulge? The answer, I believe, is plainly that Congress could not constitutionally have done these things. These are matters within the President's power as Commander in Chief, and Congress final say on the question of war or peace does not comprehend judgments on strategy or tactics.

These hypothetical cases are analogous to what is before us today because the conduct of intelligence in the modern age, given the close interdependence of nations and a technology that can bring war to any nation within a matter of minutes, presents many of the same requirements as the conduct of war: the need for central direction, rapid action, flexibility of judgment, secrecy, and the control of individual decisions according to a general strategic response to a hostile environment. But S. 2525 plunges Congress into tactical decisions about intelligence, decisions that are, moreover, made in advance without knowledge of the circumstances, and in this, I believe, the bill trenches impermissibly upon the role of the President.

This is a constitutional issue that ought to concern Congress and not be left for resolution by the courts. Some of these prohibitions and restrictions can hardly be litigated and may yet do permanent damage to our intelligence capabilities and to our national security. Even though the tactical controls may be unconstitutional, future Presidents may have the greatest practical and political difficulty in making that point and in repairing the damage.

There can be no dispute that constitutional rights must be preserved, and there can be no dispute that the intelligence agencies must not be allowed to slip out of control. But there are ways of doing that that are substantially less threatening to constitutional values and to national security than the enactment of complex and detailed legislation.

One way is the establishment of a strong tradition of the ways in which it is permissible or impermissible for an intelligence agency to behave. Such a tradition or a common understanding leaves room for adjustment to all of the circumstances, needs, and crises of the future which rigid statutory rules cannot begin to anticipate.

We ought to remember in this connection that what we now call the abuses of the intelligence agencies were in large measure, in many cases, actions of the sort that in that different era and climate we actually wanted the agencies to take. Many of those actions which we now regard as abuses, properly so, are said to have been known to members of Congress at the time. This suggests to me that the intelligence agencies, by and large, will behave as we expect them to.

We have made a strong start in establishing a new tradition, a new set of expectations communicated to the intelligence agencies though the investigation, discussion, and public airing of past behavior. No one, I think, can maintain that the agencies have not been greatly affected by what they have been through, or that their behavior has not been greatly altered. Some would say that their behavior has been altered more than is required by the Constitution and more than is good for our national security. But I think it is not true that we need a statute for every instance of misconduct in the past. We ought not to overlook that these past abuses were uncovered and rectified without the detailed controls this bill would provide. And now the internal controls in the executive branch are much stronger.

To reinforce the tradition we are establishing, the executive branch has been developing and enforcing guidelines of its own. I am familiar with some of these because I participated in their development under Attorney General Levi. They seemed to me, as they did to the Attorney General, fully responsive to first and fourth amendment concerns. My own work was primarily in connection with foreign intelligence electronic surveillance, but the point is a more general one.

The guidelines took the approach of stating the cause necessary to institute a surveillance or investigation, locating responsibility in identified officers for decisions about those surveillances and investigations, requiring that decisions be reviewed by specified officers at periodic intervals to see that the justifications remained in force, minimizing the surveillances to what was actually required by the case, closely limiting the persons who could have access to the information developed and to the use that could be made of the information. That approach seems to me both to preseve constitutional rights and to be about the best that can be done in this complex and changing field.

It would also be wise, I think, before legislating detailed controls of somewhat dubious constitutionality, to determine how well American intelligence has been carried on under the guidelines already in place. We do not really know whether those guidelines have damaged the American intelligence operation unnecessarily. I will be quite brief about the warrant requirements introduced by title III, partly because some of them have already been enacted by the Senate, and partly because I have already made my argument in print about the idea of introducing judges into the intelligence process. And I understand that the article I wrote has been made a part of the record of the hearings of this committee.

The constitutional problem here arises both from article II and article III of the Constitution. The article II problem exists because presidents have publicly claimed and exercised the power to engage