Multimedia Mania/abacus-multimedia-mania.iso/dp/0109/01093.txt

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$Unique_ID{bob01093}
$Pretitle{}
$Title{Iran-Contra Affair: The Report
Chapter 28   Recommendations}
$Subtitle{}
$Author{Various}
$Affiliation{}
$Subject{committees
covert
recommend
congress
action
findings
finding
intelligence
law
arms}
$Date{1987}
$Log{}
Title:       Iran-Contra Affair: The Report
Author:      Various
Date:        1987

Chapter 28   Recommendations

     It is the conclusion of these Committees that the Iran-Contra Affair
resulted from the failure of individuals to observe the law, not from
deficiencies in existing law or in our system of governance.  This is an
important lesson to be learned from these investigations because it points to
the fundamental soundness of our constitutional processes.

     Thus, the principal recommendations emerging from the investigation are
not for new laws but for a renewal of the commitment to constitutional
government and sound processes of decisionmaking.

     The President must "take care" that the laws be faithfully executed. This
is both a moral and legal responsibility.

     Government officials must observe the law, even when they disagree with
it.

     Decisionmaking processes in foreign policy matters, including covert
action, must provide for careful consideration of all options and their
consequences.  Opposing views must be weighed, not ignored.  Unsound
processes, in which participants cannot even agree on what was decided (as in
the case of the initial Iranian arms sale) produce unsound decisions.

     Congress' role in foreign policy must be recognized, not dismissed, if
the benefit of its counsel is to be realized and if public support is to be
secured and maintained.

     The Administration must not lie to Congress about what it is doing.
Congress is the partner, not the adversary of the executive branch, in the
formulation of policy.

     Excessive secrecy in the making of important policy decisions is
profoundly antidemocratic and rarely promotes sound policy decisions.

     These recommendations are not remarkable.  They embody the principles on
which this country's success has been based for 200 years.  What is remarkable
is that they were violated so freely and so repeatedly in the Iran-Contra
Affair.

     Congress cannot legislate good judgment, honesty, or fidelity to law. But
there are some changes in law, particularly relating to oversight of covert
operations, that would make our processes function better in the future.  They
are set forth below:

1.  Findings:  Timely Notice

     The Committees recommend that Section 501 of the National Security Act be
amended to require that Congress be notified prior to the commencement of a
covert action except in certain rare instances and in no event later than 48
hours after a Finding is approved.  This recommendation is designed to assure
timely notification to Congress of covert operations.

     Congress was never notified of the Iranian arms sales, in spite of the
existence of a statute requiring prior notice to Congress of all covert
actions, or, in rare situations, notice "in a timely fashion."  The
Administration has reasoned that the risks of leaks justified delaying notice
to Congress until after the covert action was over, and claims that notice
after the action is over constitutes notice "in a timely fashion."  This
reasoning defeats the purpose of the law.

2.  Written Findings

     The Committees recommend legislation requiring that all covert action
Findings be in writing and personally signed by the President.  Similarly, the
Committees recommend legislation that requires that the Finding be signed
prior to the commencement of the covert action, unless the press of time
prevents it, in which case it must be signed within 48 hours of approval by
the President.

     The legislation should prohibit retroactive Findings.  The legal concept
of ratification, which commonly arises in commercial law, is inconsistent with
the rationale of Findings, which is to require Presidential approval before
any covert action is initiated.

     The existing law does not require explicitly that a Presidential Finding
approving a covert operation be in writing, although executive orders signed
by both Presidents Carter and Reagan required that they be in writing.
Despite this requirement, a PROF note by McFarlane suggested that the initial
arms sales to Iran were approved by a "mental finding," and there is
conflicting testimony about whether certain actions were orally approved by
the President.  The requirement of a written Finding will remove such
uncertainties in the future.

3.  Disclosure of Written Findings to Congress

     The Committees recommend legislation requiring that copies of all signed
written Findings be sent to the Congressional Intelligence Committees.

     Since existing law does not require that covert action Findings be in
writing, there currently is no requirement that written Findings be disclosed
to Congress.  The existing practice has been not to provide the Intelligence
Committees with a signed written Finding.

4.  Findings:  Agencies Covered

     The Committees recommend that a Finding by the President should be
required before a covert action is commenced by any department, agency, or
entity of the United States Government regardless of what source of funds is
used.

     The existing statutes require a Presidential Finding before a covert
action is conducted only if the covert action uses appropriated funds and is
conducted by the Central Intelligence Agency (CIA).  By executive order and
National Security Decision Directive (NSDD), Presidential Findings are
required before covert actions may be conducted by any agency.  Nonetheless,
both the National Security Council (NSC) and the Drug Enforcement
Administration (DEA) became engaged in covert actions without Presidential
Findings fully authorizing their involvement.

     The executive order requirement is sound.  In the Committees' judgment,
Presidential Findings for covert actions conducted by any agency should be
required by law.  Experience suggests that Presidential accountability, as
mandated by the Finding requirement, is equally as important in the case of
covert actions conducted by agencies other than the CIA.

     The Committees also believe the Finding requirement should apply
regardless of the source of funding for the covert action.

5.  Findings:  Identifying Participants

     The Committees recommend legislation requiring that each Finding should
specify each and every department, agency, or entity of the United States
Government authorized to fund or otherwise participate in any way in any
covert action and whether any third party, including any foreign country, will
be used in carrying out or providing funds for the covert action.  The
Congress should be informed of the identities of such third parties in an
appropriate fashion.

     Current law does not require a Finding to state what agencies, third
parties, or countries will be utilized in conducting a covert action.  The
Iran-Contra investigation demonstrates that disclosure of what U.S. agencies
(such as the NSC), private parties, or foreign countries will be engaged in
covert actions are matters of considerable importance if Congress is to
fulfill its oversight responsibilities adequately.

     The record of the Iran-Contra investigation reflects repeated efforts by
the executive branch to obtain funds from third countries for covert
operations and for other causes the Administration supports.

     These actions raise concerns of two kinds.  First, there is a risk that
foreign countries will expect something in return.  Second, in an extreme case
such as that presented by the record of these hearings, the use of third
country or private funds threatens to circumvent Congress' exclusive power of
the purse.

6.  Findings:  The Attorney General

     The Committees recommend that the Attorney General be provided with a
copy of all proposed Findings for purposes of legal review.

     The first Iranian arms Finding of December 5, 1985, was not reviewed by
the Attorney General.  The Attorney General did give oral advice on the
January 17 Finding but did not do the analysis or research that a written
opinion would have entailed.  The President, the intelligence community, and
Congress are entitled to a review by the country's chief legal officer to
ensure that planned covert operations are lawful.

7.  Findings:  Presidential Reporting

     The Committees recommend that consistent with the concepts of
accountability inherent in the Finding process, the obligation to report
covert action Findings should be placed on the President.

     Under current law, it is the head of the intelligence entity involved
which has the obligation to report to Congress on covert action.  Yet policy
choices are inherently part of the Findings process and it is the President
who must authorize covert operations through the signing of Findings.

8.  Recertification of Findings

     The Committees recommend that each Finding shall cease to be operative
after one year unless the President certifies that the Finding is still in the
national interest.  The executive branch and the Intelligence Committees
should conduct frequent periodic reviews of all covert operations.

9.  Covert Actions Carried Out by Other Countries

     The Committees believe that the definition of covert action should be
changed so that it includes a request by an agency of the United States to a
foreign country or a private citizen to conduct a covert action on behalf of
the United States.

10.  Reporting Covert Arms Transfers

     The Committees recommend that the law regulating the reporting of covert
arms transfers be changed to require notice to Congress on any covert shipment
of arms where the transfer is valued at more than $1 million.

     Under current law, the Administration must report covert arms transfers
involving any single item valued at more than $1 million.  Since a TOW or a
HAWK missile is individually worth less than $1 million, this reporting
requirement did not apply to the Iranian arms sales even though two shipments
involved $10 million in arms or more.  It is the value of a transfer, not the
value of each component of a transfer, that matters.

11.  NSC Operational Activities

     The Committees recommend that the members and staff of the NSC not engage
in covert actions.

     By statute the NSC was created to provide advice to the President on
national security matters.  But there is no express statutory prohibition on
the NSC engaging in operational intelligence activities.

12.  NSC Reporting to Congress

     The Committees recommend legislation requiring that the President report
to Congress periodically on the organization, size, function, and procedures
of the NSC staff.

     Such a report should include a list of duties for each NSC staff position
from the National Security Adviser on down, and whether incumbents have been
detailed from a particular department or agency.  It should include a
description of the President's guidelines and other instructions to the NSC,
the National Security Adviser, and NSC staff for their activities.  Particular
attention should be paid to the number and tenure of uniformed military
personnel assigned to the NSC.

13.  Privatization

     The Committees recommend a strict accounting of all U.S. Government funds
managed by private citizens during the course of a covert action.

     The record of the Iran-Contra hearings reflects use of private parties to
conduct diplomatic missions and covert actions.  Private parties can be of
considerable use to the Government in both types of ventures and their use
should be permitted.  However, the record reflects that funds generated during
a covert action are subject to abuse in the hands of a private citizen
involved in conducting a covert action.

14.  Preservation of Presidential Documents

     The Committees recommend that the Presidential Records Act be reviewed to
determine how it can be made more effective.  Possible improvements include
the establishment of a system of consultation with the Archivist of the United
States to ensure complete compliance with the Act, the creation of a program
of education of affected staff as to the Act's provisions, and the attachment
of criminal penalties for violations of the Act.

     During the Iran-Contra hearings, Oliver North, John Poindexter, Fawn
Hall, and others admitted to having altered and destroyed key documents
relating to their activities.  Such actions constitute violations of the
Presidential Records Act, which was intended to ensure the preservation of
documents of historical value that were generated by the Chief Executive and
his immediate staff.

15.  CIA Inspector General and General Counsel

     The Committees recommend that a system be developed so that the CIA has
an independent statutory Inspector General confirmed by the Senate, like the
Inspectors General of other agencies, and that the General Counsel of the CIA
be confirmed by the Senate.

     The CIA's internal investigation of the Iran-Contra Affair - conducted by
the Office of the Inspector General - paralleled those of the Intelligence
Committees and then the Iran Committees.  It contributed to, and cooperated
with, the Tower Board.  Yet, the Office of the Inspector General appears not
to have had the manpower, resources or tenacity to acquire key facts uncovered
by the other investigations.

     The Committees also believe the General Counsel plays an important role
in these matters and accordingly should be confirmed by the Senate.

16.  Foreign Bank Records Treaties

     The Committees recommend that treaties be negotiated with foreign
countries whose banks are used to conceal financial transactions by U.S.
citizens, and that these treaties covering foreign bank records specify that
Congress, not just the Department of Justice, has the right to request, to
receive, and to utilize such records.

     Many of the important records relating to the Iran-Contra Affair were
generated by foreign banks that were used by the Enterprise for the covert
arms sales to Iran and the Contra supply operation.  The Independent Counsel
has sought access to these Swiss bank records pursuant to a treaty with
Switzerland.  But the Independent Counsel and the Justice Department do not
believe the Congressional Committees are entitled under the terms of the
treaty to receive these records.  New treaties should assure Congress of
access to such records and should streamline the process for obtaining them.
The Independent Counsel had not received all of the Swiss bank records after 9
months of waiting.  Given the use of foreign banks by drug dealers,
terrorists, and others involved in unlawful activity, it is more essential
than ever that binding secrecy not be a shield for serious criminal conduct.

17.  National Security Council

     The Committees recommend that all statutory members of the National
Security Council should be informed of Findings.

18.  Findings Cannot Supersede Law

     The Committees recommend legislation affirming what the Committees
believe to be the existing law: that a Finding cannot be used by the President
or any member of the executive branch to authorize an action inconsistent
with, or contrary to, any statute of the United States.

19.  Improving Consistency in Dealing with Security Breaches

     The Committees recommend that consistent methods of dealing with leaks of
classified information by government officials be developed.

     The record of these hearings is replete with expressions of concern by
executive branch officials over the problem of unauthorized handling and
disclosure of classified information.  The record is also replete with
evidence that high NSC officials breached security regulations and disclosed
classified documents to unauthorized persons when it suited their purposes.
Yet no steps have been taken to withdraw or even review clearances of such
people.

20.  Review of Congressional Contempt Statutes

     The Committees recommend that the Congressional contempt statutes be
reviewed by the appropriate Committees.

     There is a need, in Congressional investigations, for a swift and sure
method of compelling compliance with Congressional orders for production of
documents and the obtaining of testimony.  These investigations raised
questions about the adequacy of existing statutes.

     In addition, new legislation should make clear that a Congressional
deposition, including one conducted by staff, is a "proceeding" at which
testimony may be compelled under the immunity statute, 18 U.S.C. Section 6001
et. seq.

21.  Review of Special Compartmented Operations Within the Department of
Defense

     The Committees recommend that oversight by Intelligence and Armed
Services Committees of Congress of special compartmented operations within the
Department of Defense be strengthened to include systematic and comprehensive
review of all such programs.

22.  Review of Weapons Transfers by Chairman of Joint Chiefs of Staff

     The Committees recommend that the President issue an order requiring that
the Chairman of the Joint Chiefs of Staff should be consulted prior to any
transfer of arms by the United States for purposes of presenting his views as
to the potential impact on the military balance and on the readiness of United
States forces.

23.  National Security Adviser

     The Committees recommend that Presidents adopt as a matter of policy the
principle that the National Security Adviser to the President of the United
States should not be an active military officer and that there should be a
limit placed on the tour of military officers assigned to the staff of the
National Security Council.

24.  Intelligence Oversight Board

     The Committees recommend that the Intelligence Oversight Board be
revitalized and strengthened.

25.  Review of Other Laws

     The Committees suggest that appropriate standing Committees review
certain laws for possible changes:

     a.  Should restrictions on sales of arms to certain countries under the
Arms Export Control Act ("AECA") and other statutes governing overt sales be
made applicable to covert sales?

     b.  Should the Hostage Act be repealed or amended?

     c.  Should enforcement or monitoring provisions be added to the AECA so
that we better control retransfers of U.S.-manufactured arms by countries to
whom we sell them?

26.  Recommendations for Congress

     a.  The Committees recommend that the oversight capabilities of the
Intelligence Committees be strengthened by acquisition of an audit staff.

     b.  The Committees recommend that the appropriate oversight committees
conduct review of sole-source contracts for potential abuse.

     c.  The Committees recommend that uniform procedures be developed to
ensure that classified information is handled in a secure manner and that such
procedures should include clear and strengthened sanctions for unauthorized
disclosure of national security secrets or classified information which shall
be strictly enforced.

27.  Joint Intelligence Committee

     The Committees recommend against consolidating the separate House and
Senate Intelligence Committees into a single joint committee.  We believe that
such consolidation would inevitably erode Congress' ability to perform its
oversight function in connection with intelligence activities and covert
operations.  Congress has structured its system for effective oversight in
this area to meet the need for secrecy that necessarily accompanies
intelligence activities and the creation of a single oversight committee would
simply add nothing to this effort.