$Unique_ID{bob01090} $Pretitle{} $Title{Iran-Contra Affair: The Report Chapter 27B Section 501 and Related Regulation} $Subtitle{} $Author{Various} $Affiliation{} $Subject{congress notice intelligence covert president prior committee section act action} $Date{1987} $Log{} Title: Iran-Contra Affair: The Report Author: Various Date: 1987 Chapter 27B Section 501 and Related Regulation The Committees find that the failure to notify the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence of the covert action to support the Contras violated the Congressional notice provisions of Section 501 of the National Security Act; and that the delay in notifying Congress of the Iran arms sales abused whatever flexibility Congress built into the statute. Section 501 of the National Security Act requires that Congress be notified of all covert actions conducted by any agency of Government. The statute provides: The Director of Central Intelligence and the heads of all departments, agencies and other entities of the United States involved in intelligence activities shall: (1) keep the Select Committee on Intelligence of the Senate and Permanent Select Committee on Intelligence of the House of Representatives (hereinafter in this section referred to as the "Intelligence Committee") fully and currently informed of all intelligence activities which are the responsibility of, are engaged in by or are carried out for or on behalf of any department, agency, or entity of the United States, including any significant anticipated intelligence activity. There are only two exceptions or qualifications to the requirement of prior notice. First, the relevant head of a department, in lieu of notifying both Intelligence Committees, may notify the two ranking Members of each Intelligence Committee, and the two ranking Members of each House of Congress. This requires a personal decision by the President of the United States. Second, the Act recognizes that there are circumstances under which the President may not have provided any prior notice to Congress. In such a case, he must "fully inform the Intelligence Committees in a timely fashion" with a "statement of the reasons for not giving prior notice." This also requires a personal decision by the President. The notification provision of Section 501 serves vital purposes for both Congress and the executive branch. First, the required notification allows for beneficial congressional input in decisions that may affect important national interests. As former Director of Central Intellience William E. Colby said during consideration of the Act, discussion with Congressional officials of planned covert actions "enables the Executive to get a sense of Congressional reaction and avoid the rather clamorous repudiation which has occurred in certain cases . . . . I think that is a helpful device." Second, notification enables Congress to fulfill its constitutionally mandated role of monitoring Executive actions in the area of national defense and foreign policy lest covert actions entangle the country in overt hostilities. As a mechanism for consultation between the executive and legislative branches, notification helps to address the anomaly of formulating plans for secret action within a democracy. The language of Section 501, as well as its legislative history, was the product of a delicate compromise between Congress and the executive branch. The purpose of the compromise was to avoid a confrontation with President Carter, who maintained there might be situations in which he should not be required to give prior notice, and that a statute requiring such disclosure in every case would interfere with his constitutional responsibilities. After lengthy consultation with the Administration, the statute was crafted so as to permit the Congress and the President to continue to disagree. This was done by the inclusion of a preamble that states that the notice requirements apply "to the extent consistent with all applicable authorities and duties, including those conferred upon the executive and legislative branches of the Government," and by recognizing that there might be circumstances where prior notice is not given. Deferral of notice was intended to be the exception, not the rule. For example, Senator Dee Huddleston, the lead sponsor of the bill, stated: I myself believe that the only constitutional basis for the President to withhold prior notice of a significant intelligence activity would be exigent circumstances when time does not permit prior notice; in such a case the committee could be notified as soon as possible. Similarly, Senator Daniel Inouye said during consideration of the Conference Report on the Intelligence Oversight Act: I am of the firm belief that the only time the President has the constitutional authority to withhold prior notice to the intelligence committees would be in matters of extreme exigency. In my experience as chairman of the Intelligence Committee and as a continuing member of that committee, and after 4 years of reviewing the covert operations of our intelligence system, I cannot conceive of any circumstance which would require the withholding of prior notice except where the nation is under attack and the President has no time to consult with Congress before responding to save the country. The Administration's conduct in the Iran-Contra Affair was inconsistent with these standards. The Contra Covert Operation Under Section 501, the President alone can make a determination to delay notice of a covert operation. The President did not make a personal determination that notice of the NSC staffs Contra support activity should either be delayed or limited. Indeed, he has publicly disclaimed knowledge of the covert action. Thus, prior notice to Congress of the covert action by the NSC staff was required. No notice of any kind was ever sent to Congress concerning the Contra covert action conducted by the NSC staff. On the contrary, the NSC staff took every step to keep Congress from discovering its activities. The covert action was carried out in violation of the Congressional notice provisions of the National Security Act. The Iranian Arms Sales The President did know of the Iran arms sales, and he made a deliberate decision not to notify Congress. Thus, Congress did not learn of direct arms sales to Iran, approved by the Finding of January 17, 1986, until the press reported it in November 1986. Congress did not learn of the December 5, 1985, Finding approving U.S. participation in the Israeli shipments until Poindexter's testimony was compelled under a grant of immunity. As a consequence of the President's decisions not to notify Congress, the operation continued for over a year through failure after failure, and when Congress finally did learn, it was not through notification by the Administration, but from a story published in a Beirut weekly. The flexibility afforded the President for providing notice to Congress was abused by this delay. The reason cited for not notifying Congress was not that there was insufficient time to notify Congress - the only reason recognized in the legislative history justifying absence of prior notice - but that leaks might result and could endanger the hostages. There was no evidence to support such a rationale. The hostages had value to their holders only while they were alive. The Intelligence Committees frequently are entrusted with information about covert operations in which disclosure would?ut American lives at risk. Moreover, the information the Administration withheld from Congress was given at various times to an Iranian intermediary who failed several CIA lie detector tests, officials of the Government of Iran, officials of the Government of Israel, officials of the Government of a European country, private Israeli businessmen, and private U.S. citizens who did not have security clearances, such as Hakim. It is a fair conclusion, therefore, that the Administration chose not to notify Congress of the arms-for-hostages initiative precisely because it anticipated Congress' objections and knew that the Secretaries of State and Defense would not defend the initiative. Indeed, the Iran initiative was contrary to longstanding national policies and to common sense, and the Administration might have abandoned the plan rather than disclose it to Congress. All covert actions can be supported by strong arguments for secrecy. If the Administration can use these arguments as reasons to withhold notice where its plans are most suspect, Section 501 of the National Security Act is all but nullified. It is precisely when a covert action is suspect and potentially embarrassing that Congressional notice is most important. It is also then that the Administration is most in need of independent evaluations and criticism of proposed policies. And it is then when Congress, the representative of the people, must be given at least the opportunity to be heard in secret before action that could be calamitous for the Nation is carried out. The DEA Hostage Rescue Operation In 1985 and 1986, the NSC used DEA agents to conduct a covert operation designed to free the hostages. The details of this operation are described in a later Chapter of this Report. Congress must be notified of such operations under Section 501 of the National Security Act. No notice of any kind was provided to Congress about this operation, and no decision was ever made by the President that prior notice should be withheld or delayed. Thus, failure to notify Congress of the DEA covert operation violated the law.