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Oversight Act, and this certainly was a step forward.


today we know that it was not enough.

Sadly, my words from

1975 are all too pertinent today.

I wish to make another point.

It bears emphasizing that

it was by act of Congress that the CIA was established and

exists today; it was by act of Congress that covert activities

were authorized and contin

to occur.

This is so because our

Constitution confers on Congress the power to make the laws,

and the President is charged with taking care that the laws

are faithfully executed according to the intent of Congress.

In my judgment, the constitution clearly provides to

Congress an important role in foreign policy, and this role

includes the process of overseeing covert activities.

It is

part of the system of checks and balances among the separate

branches of government.

And we should remember that the

oversight process does not give the Congress a veto, but only

a voice.

At no time in recent memory has there been more need

than now for Congress to speak on the subject of covert


In the aftermath of the Iran-contra affair and

the damage that it did to our nation's credibility and

influence, it is incumbent on all who hold positions of

authority to take the necessary steps towards restoring our

former position.

The legislation before you is a splendid

- 9

move in this direction and will be of vital importance in

reducing the possibility of another similar disaster.

I thank you.

Mr. CONYERS. Our first panel of witnesses consists of Professor Loch Johnson of the University of Georgia; Professor Harold Koh from Yale University; and Attorney Gary Stern from the American Civil Liberties Union.

Professor Johnson formerly served as aide to Senator Church, and is author of the book, “A Season of Inquiry,” which details the work of the Church committee. Professor Koh was formerly the attorney advising the Office of Legal Counsel of the Department of Justice, and is the author of the forthcoming Yale Law Journal article on "The Lessons of Contragate." And Attorney Gary Stern is currently a research associate with the American Civil Liberties Union and testified earlier this week in a matter with regard to the FBI before another subcommittee of the Judiciary.

We welcome you, gentlemen. We notice, Professor Johnson, that one of your writings, "Decisions of the Highest Order," has just come off the press and may also contain points relative to the subject matter that we gather here to discuss. We welcome you all. Thank you very much for your time and the preparation that you have put into your statements, all of which will be accepted into the record, without objection, not only yours, but all of the witnesses.

And so, we would ask you to proceed in summary fashion, unfortunately. I would like to invite Professor Johnson to begin.


Mr. JOHNSON. Mr. Chairman, I am honored to be a member of this distinguished panel assembled here to examine the Official Accountability Act.

The consideration of recent foreign policy violations indicates why a measure like the one you propose is in order. Foreign policy is a vast domain, and time here is limited, so please allow me to focus on intelligence operations, only one portion of the whole, yet often at the center of controversy over the abuse of national security powers.

The modern American intelligence community was established by the National Security Act in 1947. Prior to the Iran-Contra affair, the history of these secret agencies reflected a three-staged evolution toward greater democratic control.

The first phase, the Era of Trust, from 1947 to 1974, was a time when the intelligence agencies were permitted an almost complete discretion to chart their own courses, free of meaningful scrutiny by overseers in the Congress or even in the White House.

This state of benign neglect changed dramatically in the aftermath of a series of articles published in The New York Times throughout December 1974. These articles charged the CIA with unsavory operations against a democratically-elected regime in Chile, and with “massive” spying at home. The American public itself had become the object of the CIA's dark trades.

The second phase, the Era of Skepticism, 1975 through 1976, saw the intelligence agencies reel under the impact of the investigations led by public officials on Capitol Hill and in the White House

now suddenly skeptical about the trust they had long placed in America's secret service.

The investigations released a torrent of information on the invisible side of American Government. The extensive hearings and reports published by investigators stood several feet high and chronicled, often in chilling detail, the dangers posed by the intelligence agencies when misused.

The third phase, the Era of Uneasy Partnership, 1976 through 1986, witnesses a closer legislative monitoring of the intelligence community and a heightened public awareness of its mission, a democratization of U.S. intelligence policy. The Congress created formal intelligence oversight committees, intelligence budgets underwent scrutiny by legislators and their staff, hearings on intelligence issues became commonplace, and new laws tightened legislative supervision over covert action, electronic surveillance and other important intelligence operations.

The fourth and current phase in the evolution of modern American intelligence, what I call the Era of Distrust, began with press disclosures in November 1986 revealing the secret sale of U.S. arms to Iran. These disclosures raised serious doubts among legislators about the intelligence community's willingness to honor the new oversight arrangements, for these arrangements had required by law formal reports to the intelligence committees on secret arms sales and other covert actions.

Further charges that the profits from the arms sales may have been channeled to the Contras in Nicaragua, despite the Boland Amendment, added fuel to the fire of criticism against the CIA gathering strength on Capitol Hill.

The Nation took up the debate once more between those who advocated democratic controls over the CIA and its sister agencies, on the one hand, and those who favored turning back the clock to the Era of Trust, on the other hand.

This thumbnail historical sketch suggests three broad conclusions. First, intelligence oversight has varied in intensity over the years, from benign neglect in its earliest stages to a marked assertiveness in 1975, when Congress began to demand restoration of its authority across the board.

Second, in the decade 1976 to 1986, intelligence policy became more accountable on the whole, and therefore more democratic, without losing its effectiveness.

And third, the Iran-Contra affair revealed that serious flaws continue to exist in the established precautions against the abuse of power by the intelligence agencies and the NSC. The checks put in place had failed to stop or even alert Congress to this unfortunate operation.

The American experiment in balancing the intelligence mission of accountability had been dealt a serious blow. The search for improved safeguards was on again, of which the bill before us is one illustration.

It was once said of the Bourbons, “They have learned nothing, and have forgotten nothing." Though the vast majority of America's intelligence officials have served the Nation with honor, skill and a respect for the law, some evidently have learned nothing about the importance of accountability and have forgotten nothing about how to evade it. They must be instructed anew.

Toward this end, permit me to offer a brief, three-point proposal that I think would move the Nation toward an improved balance between democracy and accountability in the conduct of national security policy.

First, Congress must clarify its reporting expectations for foreign policy initiatives. The requirement of prior notification for the Congress before all important intelligence operations, as advocated in the 1980 Intelligence Accountability Act, remains, in my view, the appropriate standard. The spirit of the Constitution grants Congress an opportunity for a fair appraisal, not merely a fait accompli.

Second, Congress should institute legal sanctions against those who refuse, as the chairman has once put it, “to abide by the principles of legality" in the conduct of foreign policy, and against those who lie to Congressional panels, or withhold the truth, which amounts to the same thing.

Here is where H.R. 3665 comes into play. Its section on prohibitions, 2902, ought to underscore Congressional insistence that the Nation's laws must be obeyed by Government officials. I would only have modified the language slightly to include "shall order, engage, or otherwise encourage the planning of.” This would emphasize the point that the NSC staff or other entities should not encourage private individuals and foreign countries to violate U.S. law on its behalf, as occurred during the Iran-Contra episode.

And in section 2904, sanctions, the subcommittee may want to strengthen (b)(1) with stiffer penalties, say, "may be imprisoned for not less than 1 year or more than 10 years and may be fined not more than $100,000."

Third, and a larger problem that passage of H.R. 3665 should help address, but which it cannot alone correct, lies in the continuing unwillingness of some executive officials to honor the procedural safeguards already in place, and, as the Inouye-Hamilton committee put it, to “deal in a spirit of good faith with the Congress.

When asked by Congressional investigators on that panel why he had withheld information from the Intelligence Committees about the secret sale of arms to Iran, Admiral Poindexter responded, “I simply didn't want any outside interference."

Even months after the embarrassing revelations of the IranContra investigation, and following his own admission that he, too, had lied to Congress, the Assistant Secretary of State for Latin America, Elliott Abrams, had the gall to publicly declare that a recently-issued CIA reprimand against one of its own officers who had also lied to Congress "would send exactly the wrong signal to young officers with the Agency."

In fact, it sent precisely the right signal, the same one presented by H.R. 3665, that improper acts carry penalties. If the wrong signal has been sent, surely it comes from Abrams' continuance in office, despite his apparent deep-seated attitude of disdain toward the entire concept of Congressional accountability.

Looking back over the events of the Iran-Contra affair, President Jimmy Carter's National Security Adviser, Dr. Brzezinski, recalled that the withholding of information about important intelligence

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