Mr. CONYERS. Thank you very much, Professor Johnson.

I would like to ask you some questions, but we are going to go through the whole panel first. And we turn now to Professor Harold Hongju Koh of Yale Law School, who has been specializing in international law and the Constitution and foreign affairs for some time, and has worked in the Department of Justice. Welcome to the hearing.

Mr. Koн. Thank you, Mr. Chairman.

Mr. CONYERS. Might I caution you that we probably won't be able to have everyone present their whole statement, because with two panels and the fact that the House is in session is going to probably curtail our time. So if you could summarize and hit your high points, it would be very much appreciated.

TESTIMONY OF HAROLD HONGJU KOH, PROFESSOR, YALE

UNIVERSITY SCHOOL OF LAW, NEW HAVEN, CT

Mr. Koн. I will try, Mr. Chairman.

Let me first applaud the subcommittee and its chairman for holding these hearings, which I think are long overdue. As the chairman mentioned, I am in the process of completing an article which shall appear shortly in the Yale Law Journal, which analyzes the recently-completed House and Senate select investigations of the Iran-Contra affair.

In that article, which I will submit to the committee to supplement my testimony, I argue that two competing conventional wisdoms about the Iran-Contra affair have recently taken hold among Members of the Congress and the public.

The first, which is suggested by the Tower Commission report and also the by Majority Report of the Iran-Contra Committee, is that that affair resulted primarily from a failure of people and not laws. Under this view, Congress doesn't now need to consider new legislation, because Congress can't legislate good judgment or honesty or fidelity to law.

Now, there is a second, contradictory conventional wisdom, which is asserted by the Iran-Contra minority, namely that the Iran-Contra hearings represented yet another effort by Congress to micro-manage foreign policy by legalizing foreign policy differences between the political branches.

Under this view, national security legislation is not only unnecessary, but in the minority's words, "unconstitutional," "unwise," and "unconscionably meddlesome."

In my judgment, both of these conventional wisdoms are false. The first view suggests that we don't need new legislation because the national security system is nately self-regulating. The second suggests that we don't need new laws because the system is overregulated. I reject both views.

In my view, the Iran-Contra affair shows that our system is inadequately regulated. The affair stemmed neither from bad people violating good laws, which is what the various investigators concluded, nor from good people violating bad laws, which is what some administration officials have maintained, but from misguided people violating ineffective laws.

If, as I believe, the Iran-Contra affair ultimately resulted not just from a failure of legal enforcement, but a failure of legal structure, then the time is now ripe for Congress to consider legislation that would structure the relationship between Congress, the President, and the courts in foreign affairs.

Let me quickly outline what I think the proper precedent, problem and prescription are for the Iran-Contra affair, and then turn quickly to the merits of my proposal.

First, the precedent: There is a common misperception among many Members of Congress and also the public that the historical precedent for Contragate was Watergate. But if you look back not at the history of Presidential scandals, but across the spectrum of foreign policy concerns-war powers, treaty affairs, military aid, economic power, arms sales, and covert actions-what you recognize is that the relevant historical precedent for the Iran-Contra affair was not Watergate, which was our most recent Presidential scandal, but Vietnam, which was our most memorable foreign policy failure.

In almost every area of foreign policy, one could detect a growing pattern of executive dominance in foreign affairs, what has been called the "Imperial Presidency," which contributed to the Vietnam fiasco. After Vietnam, Congress spent the rest of the 1970s passing a whole wave of statutes that were designed to prevent that war from happening again. Those statutes' names are familiar to all of us: The War Powers Resolution, the Case-Zablocki Act, the International Emergency Economic Powers Act, the Hughes-Ryan Act, the Arms Export Control Act, and so forth.

Accepting that Vietnam and not Watergate was the precedent, then the real problem that the Iran-Contra affair reveals is that this pattern of executive avoidance of Legislative constraint in foreign affairs, which started in Vietnam, is continuing even after the Iran-Contra affair.

Congressman Gekas did mention that we have plenty of national security statutes on the books. But what is most striking about the Iran-Contra affair is that it happened even though all of these statutes were on the books. In each of these statutes, Congress sought to impose on the President restrictions whose premises he apparently did not accept, and even though he signed these statutes, during the Iran-Contra affair his subordinates jumped through loopholes in those statutes or simply violated them.

This pattern has occurred not only in the areas of covert operations and military aid, where the Iran-Contra affair took place, but also in other areas of foreign policy. We see Presidential avoidance of Congressional restraints in the war powers field, in the Persian Gulf. We see the Presidential avoidance of Congressional restraint in treaty affairs, with the ABM reinterpretation debate. We see the Presidential avoidance of Congressional restraint in the area of arms sales.

In short, the Iran-Contra affair was only the tip of a much larger iceberg that began at least as early as Vietnam. It was Vietnam that spurred Congress to pass the War Powers resolution in the first place, to try to regulate overt war-making, but rather than eliminating overt war-making, the resolution only drove it underground, as the executive branch substituted covert for overt oper

ations and shifted war-making authority from parts of the military establishment to the intelligence agencies, particularly the CIA.

When Congress started to regulate the CIA with special oversight committees, the Agency then shifted some of its activities to an unregulated entity, the National Security Council. When the NSC staff's resources proved inadequate to carry out its mission, it subcontracted its duties to private agents and financed the payments with contributions from private individuals.

When existing laws restricted the executive branch officials from making overt arms sales, they sold the arms covertly. And after the Boland Amendment stopped official U.S. funding, aid was privatized.

In short, what the Iran-Contra affair reveals is a pattern that is familiar to any governmental regulator: that each succeeding Congressional effort to catch up with the executive branch has just served to shift executive activity into a new pattern of evasion.

What all this suggests to me is that the Iran-Contra affair did not just expose localized problems in the foreign policy process, it exposed a systemic failure of the foreign policy process. Congress' efforts, after Vietnam, to reassert itself in the foreign policy process has not worked.

Thus, the real unanswered questions after the Iran-Contra affair are not questions of individual responsibility-for example, what did the President, or for that matter, the Vice President know and when did they know it. The real question is a structural question: Why hasn't Congress been able to force the President to keep his bargain in foreign affairs? Or to put it another way: Why does the President continue to win in national security affairs?

The answer to that question I think lies in a combination of three factors, which I call executive initiative, Congressional acquiescence, and judicial tolerance. The reason why the President has won, first, and most obviously, is that he has institutional incentives to take the initiative in foreign affairs.

The second reason why he has won is that Congress has persistent acquiesced in what he has done, which means in institutional terms that Members of Congress have been unable to force votes on joint resolutions that would challenge his actions, and then to override his vetoes of those resolutions.

And third and most important, the President has won because the Federal courts have usually tolerated his acts in one of two ways: either by hearing challenges to those acts and ruling in his favor on the merits, or more frequently, by refusing to hear challenges that are brought by Congressmen or by private plaintiffs on the grounds either that the plaintiff lacks standing or Congressional standing, (legal doctrines that a number of you are familiar with); that the defendant is immune or that the question is nonjusticiable, not ripe or moot; or that relief is otherwise inappropriate. What we must recognize is that the result of this combination of executive initiative, Congressional acquiescence and judicial tolerance is that in almost every case, the President wins. If the President has authority and Congress approves or acquiesces in his action, the President wins.

If Congress doesn't acquiesce, but cannot generate the political will to cut off appropriations or to pass a joint resolution to chal

lenge his action, the President wins. If they are able to challenge his actions, and the courts refuse the challenge, the President wins, and if the courts do hear the challenge, and the courts rule in his favor, the President again wins. So, whatever the scenario, the bottom line is the same: the President almost always seems to win in foreign affairs.

As the Iran-Contra affair illustrates, over time, this situation leads to an increasing insulation of executive branch judgment from external scrutiny. This insulation makes it increasingly difficult to hold executive branch officials accountable for their acts, which in large measure explains why we are in the situation we are in today.

Now, if this is the problem and the precedent, what is the policy prescription? Both the Tower Commission and the Majority of the İran-Contra Committees focused almost entirely on problems within the executive branch, and tried to correct what they thought were sources of executive adventurism within that branch. But what I have suggested is that any post Iran-Contra legislative effort should also focus on the sources of Congressional acquiescence and judicial tolerance which I think have contributed equally to the problem. To succeed, any new legislation should try to restore the Constitutional equilibrium, not just by restraining the Executive, but also by increasing the participation of Congress and the courts in the foreign policy process.

Thus, I think any new legislation should have three goals: First, to reduce the isolation that currently surrounds executive activities; second, to enhance internal executive deliberations; and finally, to increase Congressional-executive dialogue in foreign affairs. How concretely should this be done? The bill before us tries to promote some of these ends, but what the Iran-Contra affair demonstrates is that we really need more ambitious legislation. What we really need is a new national security charter, what Professor Gerhard Casper from the University of Chicago has called "framework" legislation, which would try to reorganize the policymaking process across several fields of foreign affairs.

To those of you who would say that Congress could never agree on omnibus national security legislation, let me point out that 40 years ago, Congress passed exactly this type of legislation when it passed the National Security Act of 1947, which created the NSC, the Joint Chiefs of Staff, the CIA, and the Department of Defense.

But in 1947, Congress made one great error: It did not legislate a role for Congress in the national security process, nor did it legislate a role for the courts in that process.

Congress has partly redressed this omission in laws that it passed in the post-Vietnam era, but I would argue that what the Iran-Contra affair shows is that the time now is ripe for a National Security Reform Act of 1989, like the Tax Reform Act, like the Trade Reform Act, like the Gramm-Rudman Budget Reform Act, where Congress will try to redefine the role that all three branches are playing in this process.

How broad should this legislation be? Ideally, this kind of framework statute would replace our current patchwork of laws with a new law which would reenact in five separate titles: The War Powers Resolution, the International Emergency Economic Powers

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