Mr. MITCHELL. Mr. President, I ask unanimous consent that the Committee on Armed Services be discharged from further consideration of S. 1325, the intelligence authorization bill, and that the Senate then proceed to its immediate consideration.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill will be stated by title.
The assistant legislative clerk read as follows:
A bill (S. 1325) to authorize appropriations for fiscal year 1991 for intelligence activities of the United States Government, the Intelligence Community Staff, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.
The PRESIDING OFFICER. Is there objection to the immediate consideration of the bill?
There being no objection, the Senate proceeded to considered the bill.
Mr. BOREN. Mr. President, the Senate takes up today the Intelligence authorization bill for fiscal year 1991. Congress passed an earlier version of this bill last October, assured at the time that the President would sign it.
In the weeks following adjournment, however, administration lawyers discovered problems with the bill that they had not seen previously. Despite my efforts and those of Senator Cohen, who was vice chairman of the committee at the time, to assure the administration that the concerns belatedly being raised were unfounded and could be addressed if necessary in this year's bill, the President announced on November 30, 1990, that he would not sign the bill.
In his message of disapproval, he cited two principal concerns, both arising in the so-called oversight title of the bill.
The first dealt with a sentence added in conference to the definition of the term `covert action' which provided that a request to a foreign government or private citizen to undertake a covert action on behalf of the United States would itself be treated as a covert action requiring a Presidential finding and prior reporting to the Congress. The President objected to this wording because he believed it would interfere with the conduct of diplomacy. In his view, it would create uncertainty upon diplomats and could deter foreign governments from undertaking diplomatic discussions.
The second concern dealt with report language explaining what is meant by notice `in a timely fashion.' As you will recall, Mr. President, under existing law, the President is required to provide prior notice of covert actions to Congress, but that when prior notice is withheld, notice must follow `in a timely fashion.'
This phrase is not defined in existing law, nor is it explained in legislative history. In 1986, in the aftermath of the Iran-Contra disclosures, the Department of Justice issued a legal opinion interpreting this phrase as providing the President with `virtually unfettered discretion to choose the right moment to notify the Congress' of a covert action. In later testimony on this opinion, the justice department witness conceded that this might mean months or even years.
Needless to say, this interpretation was completely at odds with the committee's interpretation of timely notice. Indeed, such an interpretation would deprive the phrase of any meaning at all.
We took this matter up with the Bush administration in 1988, asking how the President intended to comply with the statutory timely notice requirement. In a letter to both intelligence committees, he explained his intent as follows:
I anticipate that in almost all instances prior notice will be possible. In those rare instances where prior notice is not approved, I anticipate that notice will be provided within a new days. Any withholding beyond this period will be based upon my assertion of authority granted this office by the Constitution.
In the oversight provisions of the fiscal year 1991 Intelligence authorization bill, the timely notice formulation of current law is retained. In reenacting this phrase last year, however, we thought it important that the Justice Department's legal interpretation of this phrase as it had existed in previous law be rejected. Moreover, we sought in last year's report language to explain that in our view timely notice meant within a few days as the President had said he intended to comply with existing law. The conference report was deliberately silent on the issue of whether the Constitution might permit the President to withhold for longer periods.
In any case, the President in his veto message said he regarded the conference report language as undercutting his agreement with the committee by saying that `notice in a timely fashion' should be interpreted to mean `within a few days' without exception. According to the President's statement, this interpretation would `unconstitutionally infringe on the authority of the President and impair any administration's effective implementation of covert action programs.'
This had not been our intent. Indeed, it is difficult to see how report language interpreting a statutory provision could infringe upon the constitutional authority of the President. We were only explaining what our own intent had been in enacting the statute, not to circumscribe or limit authorities granted by the Constitution.
Still, we were willing to work with the President to see if we could not arrive at an explanation of the phrase `notice in a timely fashion' that would satisfy the basis requirements of both branches.
I am pleased to report, Mr. President, that the committee has been able to arrive at compromise language with the administration on the third parties issue, and, while we do not yet have agreement on the report language on timely notice, it has been substantially revised in a good faith effort to craft reasonable language that respects the positions of both branches. I am satisfied we have accomplished all that we can in our discussions of this provision, and it is time to move the legislation. I am hopeful that the House will accept this compromise in conference, and, ultimately that the administration itself will see its way clear to accept it. This is a reasonable compromise arrived at after a long series of ardous discussions; in no way would it justify a veto of this bill.
Let me explain very briefly how we propose to resolve the administration concerns.
First, on the issue of requests to third parties, we have agreed to drop the word `requests,' which was at the heart of the President's concern, but to amend the definition of covert action to clarify that any covert action which is undertaken `on behalf of the United States and under' its control will require a finding and notice to the Congress. In report language on this provision, we go on to state that we regard any situation where the United States is provding funding or other forms of significant assistance to a third party, or U.S. personnel are involved in providing direction and assistance to a third party, to undertake a covert action on behalf of the United States, we consider these situations to require prior Presidential approval and reporting to the Congress.
The administration agrees with this approach. What we were unable to agree on is whether the circumstances cited in the report language were the only circumstances where U.S. control of a third pary might constitute a covert action. The administration would, indeed, have preferred describing these circumstances as the only ones where U.S. involvement might constitute control for purposes of the definition. My personal view is that there could be circumstances other than those cited specifically in the report language where U.S. involvement might constitute control. The report language is silent on this point, however, setting forth only the circumstances where agreement was possible.
On the timely notice issue, the report language on this provision has been revised in a manner which I believe reflects comity between the branches and best serves their respective interests in this critical area. It makes clear that it is our mutual intent to return to the understandings of 1980 which underlay the timely notice formulation as initially drafted.
From the standpoint of the committee, this means rejecting the Justice Department's interpretation of existing law to give the President unfettered discretion when to notify Congress of covert actions. It also means making clear the committee's own interpretation of the statutory notice requirement.
From the standpoint of the administration, it means obtaining recognition that regardless of how the timely notice formulation might be interpreted in report language, the authority of the President to withhold notice of covert actions from the Congress ultimately depends upon the authorities granted the President by the Constitution. The President understandably does not want to be in the position of having to violate a statutory requirement--as interpreted by report language--in order to assert such constitutional powers.
We believe that the needs of both branches are accommodated by the language of the report. While we make clear that we believe it is in the mutual interest of both branches to interpret timely notice to mean within a few days, as the President himself has said he intended to implement existing law, the report makes clear that this interpretation cannot be legally binding upon the President if the Constitution does, in fact, provide authority for the President to withhold notice of covert actions for longer periods. In his letter to the committees, which I noted earlier, the President asserts that such authority exists. The committee has never accepted this assertion, but we recognize that we are in no position to resolve the constitutional issue. We cannot by statute add to or subtract from whatever powers may be granted by the Constitution. We are willing to leave the matter there.
It is also essential, Mr. President, that in considering the resolution of the two points at issue, we not lose sight of the importance of the oversight title as a whole. Title VI of the Senate bill represents a major overhaul of the legislative framework for the congressional oversight of covert actions. It is the single-most important legislative response to the deficiencies highlighted by the Iran-Contra affair. Indeed, it implements many of the recommendations made in the final report of the Iran-Contra committees.
The fact of the matter, Mr. President, is that congressional oversight of covert actions depends primarily upon directives issued by the executive branch and upon prior practice, rather than upon law. Title VI of the Senate bill seeks to change this--to establish clear and comprehensive rules to govern the approval and reporting of covert actions in a form that cannot be changed or ignored by future administrations.
Let me list a few specific examples;
Existing law--the Hughes-Ryan amendment--prohibits only CIA from using appropriated funds to carry out covert actions without a Presidential finding and reporting to the committees. The oversight title applies this restriction to all agencies.
Existing law--the Hughes-Ryan amendment and the 1980 Oversight Act--applies only to covert actions undertaken by CIA and does not include covert actions undertaken by other elements of the Government. Executive Order 12333 fills the gap by applying the requirement for a Presidential finding and reporting to the intelligence committees to all agencies. The oversight title would by law extend this requirement to any element of the Government which is used to carry out a covert action, not simply CIA.
Existing law--the Hughes-Ryan amendment and the 1980 Oversight Act--defines covert actions only as operations in foreign countries, other than activities intended solely for obtaining necessary intelligence. This would literally cover every activity that CIA--or any other agency should they be covered--undertakes that is not intelligence collection. Such an interpretation is unworkable in practice and has been largely ignored by both the committee and the executive branch since it was written. There is nothing which authoritatively says what a covert action is and what it is not. A covert action is thus whatever it has become over time. The oversight title for the first time defines and explains the term in detail in an effort to authoritatively set forth what has been current practice. It cannot cover every possibility, but it provides far more certitude than we have at present.
Existing law has no provisions which require, first, that findings be in writing; second, that findings cannot retroactively authorize covert actions; third, that findings must specify all Government entities who are participating in a covert action; fourth, or that findings must specify whether third parties will be involved in carrying out the operation. An NSC directive substantially imposes these requirements on departments and agencies, but can be waived by the President. Title VI makes each of these requirements a matter of law.
Existing law has no prohibition on utilizing covert actions to influence domestic politics, public opinion, or the media. There is such a prohibition in Executive Order 12333. The oversight title makes this prohibition a matter of law.
Existing law has no provisions requiring that
significant changes in covert action programs be reported in advance to the Congress. This has been existing practice, but title VI makes it a matter of law.
Mr. President, my point is, title VI to this bill represents a significant stop forward in terms of putting into the law itself a set of clear and comprehensive rules for oversight. These measures are good government measures, designed to ensure accountability and to ensure consultation in what is perhaps the most sensitive and potentially damaging type of activity in which this country finds it must engage.
I believe the administration deserves a great deal of credit for its willingness to accept the enactment of these salutary provisions. By allowing these reform measures to move forward, the President clearly demonstrates that he share our interest in creating a system of accountability and consultation which in the end can only serve the best interests of this country.
Mr. President, I hope my colleagues on both sides of the aisle will support this legislation. From an institutional point of view, it will provide a far more effective statutory framework for the exercise of Congress' proper oversight role in the area of covert actions. But it does not hamstring the President in terms of his ability to take timely actions to protect U.S. interests. No one wants that result.
This bill is important to the committee, Mr. President, for other reasons as well.
Although fiscal year 1991 is more than half over, it is important to the committee that expenditures of funds appropriated for intelligence activities be properly authorized. Section 502 of the National Security Act of 1947, in fact, provides that no appropriated funds may be expended for intelligence activities that have not been specifically authorized. From the committee's standpoint, only the annual intelligence authorization bill serves this function.
When the bill was vetoed last November, the committee so advised the administration, and while recognizing that expenditures for intelligence activities would necessarily have to continue until a new bill could be enacted, the committee was obliged to consider them of questionable legal status. We urged the administration, in the absence of an authorization bill, to nonetheless continue to abide by the spending limits and conditions contained in the bill. The administration advised us that it would do so.
It is, therefore, important to us even at this late date to have a specific authorization of intelligence expenditures.
In conclusion, I note there are a number of significant provisions in this bill apart from those I have already mentioned. All of these are as they appeared in last year's conference report. To summarize each very briefly:
Title I of the bill authorizes appropriations for the intelligence activities of the U.S. Government, incorporating by reference the classified schedule of authorizations. While this schedule is not made public, it is available to any Member in the committee's offices.
Title II authorizes appropriations for the Intelligence Community Staff for fiscal year 1991 at $28,880,000, and authorizes 240 personnel for that organization.
Title III contains a series of six minor amendments to CIA retirement programs. The most significant of these is section 305 which corrects an inconsistency in the treatment of former CIA spouses whose benefits were terminated because of remarriage before the age of 55. Under existing law, former spouses divorced after November 15, 1982, could have their benefits restored upon dissolution of their subsequent marriage, but former spouses divorced before this date could not. Section 305 permits both groups to have their benefits restored in such circumstances.
Title IV contains five general provisions pertaining to miscellaneous topics. Section 401 provides authority to pay increases in compensation and benefits which may be subsequently authorized by law. Section 402 provides that nothing in the bill authorizes intelligence activities which are not otherwise authorized by the Constitution or laws of the United States. Section 403 addresses a particular problem that CIA has had with employees of the foreign broadcast information service who serve as translators of public broadcasts in Hong Kong. Developed in consultation with the Immigration Subcommittees in both Houses, this provision permits the DCI to use unallocated portions of his annual allocation to permit up to 100 aliens to enter the United States to take care of FBI's employees who wish to come to the United States after 1997. Section 404 provides that certain counterintelligence positions in the Department of Energy will be excepted from the competitive civil service. Section 405 directs the Director of Central Intelligence to require elements of the intelligence community to contract with U.S. firms in appropriate circumstances.
Title V contains four provisions relating to Department of Defense intelligence activities. Section 501 permits DOD components to charge CIA the same rate charged to other DOD components for airlift services. Section 502 authorize the Defense Mapping Agency to withhold maps from public disclosure under certain specified circumstances. Section 503 provides the Director of the National Security Agency to use appropriated funds to provide assistance to certain former employees who may otherwise pose a security risk. Section 504 would provide authority to the Defense Department to engage in commercial activities to provide security for intelligence activities undertaken abroad by elements of the Department of Defense, albeit under a system of close and continuing internal and congressional oversight. Section 505 provides that the Secretary of Defense shall provide access to Members of Congress to a DIA report commonly known as the Tighe report concerning intelligence on POW's/MIA's.
Title VI, of course, is the oversight title I have already discussed.
In conclusion, Mr. President, let me simply acknowledge the contributions of all of the members of the committee, as well as our very competent and dedicated staff, to the development of this legislation.
It has been truly a cooperative, bipartisan effort of which the committee and the Senate itself can be proud. I urge my colleagues to support it.
Mr. MURKOWSKI. Mr. President, I am pleased that the Senate is now ready to address the 1991 authorization bill for the intelligence community. As you know, a previous version of the bill was not signed by the President. Senator Boren, the distinguished chairman of our committee, and I began the process of working to resolve problems associated with the President's veto when we met with General Scowcroft and Judge Webster in January. Three issues were discussed with the administration, all relating to covert action.
The first issue, raised in the President's message of disapproval last year, pertained to language added by the House of Representatives in conference to the effect that any request to a foreign government or private citizen to conduct a covert action on behalf of the United States was deemed to be a covert action subject to the restrictions and requirements of the bill. The President believed this provision was drafted vaguely, and would adversely interfere with normal diplomatic exchanges. We have made changes to address these concerns.
Another issue, involving the definition of covert action and traditional Armed Forces activities, has been resolved with the Department of Defense.
The remaining issue, involving the definition of `timely' notice of covert actions, has been the most difficult to resolve. The law requires that the President notify Congress before he undertakes a covert action program. If circumstances make prior notification impossible, then the President must notify Congress `in a timely fashion.' The definition of `timely' was not nailed down in 1980, when this provision was codified. We all are aware of the unfortunate lack of timely notice of certain covert action findings during Iran-Contra. In fact, the Senate at one point passed legislation requiring that `timely' should be defined as meaning `48 hours,' although this view did not prevail in conference with the House last year.
Our committee and this President share a desire to make sure that Congress be notified promptly of a covert action finding--if the President cannot notify Congress before he undertakes a covert action program. However, getting from here to there has been enormously difficult. The President clearly believes he should not be bound by a specific time constraint, given his view that the Constitution provides him with certain flexibility as Commander in Chief. On the other hand, Congress has established an oversight authority that has as a fundamental underpinning the requirement that we be kept informed of many aspects of our intelligence activities, including covert actions.
Throughout our negotiations, I have communicated a number of times with the White House, as has the chairman. As a result of these discussions, I believe that we should adopt the bill now, and move it into conference with the House. Certainly, this issue of defining timely notice will be a major item to be discussed with our House counterparts. For our part, I believe our report language sets forth our understanding of what `timely' notice means. By the same token, we clearly set forth the President's view of his constitutional authority. In fact, our report concedes that neither the Congress nor the President is able to resolve this constitutional issue.
I share the concerns of a number of persons within the administration, and indeed in Congress about this issue. Foremost among them is the concern that, as we codify procedures relating to covert actions--which has not been completely done before--our language needs to be precise. This includes our report language where we interpret what we believe we have done. If our definitional language, or our interpretative language, is not clear, then in the worst case scenario, the special counsel statute may come into play. We must not permit a special counsel in the future latching on to loose language to investigate endlessly or to prosecute unfairly those who get caught up in political, rather than real, offenses.
The President clearly believes that, as Commander in Chief, a President possesses strong authority to conduct operations--covert and otherwise--without a rigid requirement to provide notice within a particular timeframe to another branch of Government, namely Congress. While President Bush has indicated in correspondence with both the Senate and House Intelligence Committees that he will provide notice `within a few days' of instituting a covert action program--assuming he cannot provide notice in advance--he has been careful to preserve his belief that the Constitution does not mandate this result.
On balance, I believe our report language on `timely' notice is carefully crafted to meet our institutional demands, and those of the President.
Mr. President, I want to close by commending Senator Boren, chairman of our committee, for working so diligently to maintain the covert action and other reform provisions in our 1991 bill. This session I began service as vice chairman of the committee, and it has been a pleasure to work with Senator Boren on this important measure. He made a commitment to include reform measures in this bill, and he has resisted the expedient approach when the going got tough to simply save those reform provisions for our 1992 bill. Much of what is in this bill is a credit to David Boren's persistence.
I urge the Senate to adopt this important measure.
The PRESIDING OFFICER. Is there further debate?
Mr. SYMMS. Mr. President, I have an amendment on behalf of Senator Smith that I send to the desk for immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Idaho [Mr. Symms] for Mr. Smith, proposes an amendment numbered 515.
Mr. MITCHELL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place in the reported bill insert the following new section:
SEC. . FURNISHING OF INTELLIGENCE INFORMATION TO THE SENATE AND HOUSE SELECT COMMITTEES ON INTELLIGENCE.
(a) Furnishing of Specific Information.--In accordance with Section 501 of the National Security Act of 1947, the head of any department or agency of the United States involved in any intelligence activities which may pertain to United States military personnel listed as prisoner, missing, or unaccounted for in military actions shall furnish any information or documents in the possession, custody, or control of the department or agency, or person paid by such department or agency, whenever requested by the Senate or House Select Committee on Intelligence.
(b) Access by Committees and Members of Congress.--In accordance with Senate Resolution 400, 94th Congress and House Resolution 658, 95th Congress, the Senate and House Select Committees on Intelligence shall, upon request and under such regulations as the committees have prescribed to protect the classification of such information, make any information described in subsection (a) available to any other committee or any other Member of Congress and appropriately cleared staff.
Mr. BOREN. Mr. President, the amendment of the Senator from New Hampshire is agreeable to the committee. It would make clear that the authority of the Intelligence Committees under existing law to have access to intelligence information applies fully to intelligence information concerning POW's/MIA's. Indeed, the committee has already written to the Secretary of Defense requesting access to such information and fully expects compliance with its request. I ask unanimous consent that a copy of this correspondence be printed in the Record.
There being no objection, the letter was ordered to be printed in the Record, as follows:
Select Committee on Intelligence,
Washington, DC, June 20, 1991.
Hon. Dick Cheney,
Secretary of Defense, The Pentagon, Washington, DC.
Dear Secretary Cheney: As you may know, my Senate colleagues, Jesse Helms, Bob Smith and Charles Grassley, have been extremely concerned and committed to resolving outstanding issues affecting American POW/MIAs in Southeast Asia.
It is my understanding that they have requested that intelligence documents be brought to the Senate for their review. I have been told that the Department of Defense and specifically the Defense Intelligence Agency has resisted making these documents directly available to the Senate.
I am writing to strongly urge that the documents in question be sent to the Senate to be reviewed by interested Senators and appropriately cleared staff.
As you know, the Senate Select Committee on Intelligence is currently the repository for thousands of highly classified documents. Notwithstanding the fact that the information request on POW/MIAs may be enormous, I believe that there may be ways to facilitate the requests of my colleagues, and at the same time, maintain the high security standards required. The Senate Select Committee on Intelligence is here to serve all members of the Senate, and I believe we can do so on the POW/MIA issue as well.
The POW/MIA issue is a difficult and emotional one for many Americans. I think we need to do all we can to resolve questions affecting the loved ones of so many American families. Again, I urge you to reverse the decision to deny the Senate direct access to intelligence documents. I stand ready to work with you in this regard.
David L. Boren,
The PRESIDING OFFICER. Is there further debate on the amendment? Is there objection to the amendment?
The amendment (No. 515) was agreed to.
Mr. SYMMS. Mr. President, I move to reconsider the vote.
Mr. MITCHELL. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Are there further amendments?
Mr. MITCHELL. Mr. President, I ask unanimous consent that the Senate proceed to Calendar No. 83, H.R. 1455, the House companion, that all after the enacting clause be stricken, and the text of S. 1325, as amended, be inserted in lieu thereof, that the bill be advanced to third reading and passed and the motion to reconsider be laid upon the table; that the Senate insist upon its amendment, request a conference with the House, and that the Chair be authorized to appoint conferees on the part of the Senate.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Chair appoints the following conferees: From the Select Committee on Intelligence: Mr. Boren, Mr. Nunn, Mr. Hollings, Mr. Bradley, Mr. Cranston, Mr. DeConcini, Mr. Metzenbaum, Mr. Glenn, Mr. Murkowski, Mr. Warner, Mr. D'Amato, Mr. Danforth, Mr. Rudman, Mr. Gorton, and Mr. Chafee.
From the Committee on Armed Services: Mr. Exon and Mr. Thurmond.
Mr. MITCHELL. Mr. President, I ask unanimous consent that S. 1325 be indefinitely postponed.
The PRESIDING OFFICER. Without objection, it is so ordered.