two.38 When sensitivity is extreme, current law lets the President notify only the
"gang of eight"--the chairmen and ranking minority members of the two intelligence committees, the majority and minority leaders of the Senate, and the Speaker
and minority leader of the House.
No process can legislate wisdom or prevent circumvention. Process is, as we
have seen, no guarantee against stupid presidential decisions or the resulting public
scandals. But a requirement for advance notification--coupled with a ban on covert
operations by any entity, public or private, other than the CIA, and with specific
civil and criminal penalties for violators--would take the United States further in
managing the inherent tension between secrecy and open government that is the
root of American ambivalence about covert action.
If the Congress saw fit to create a single focal-point for engaging the Executive
in discussion about both overt and covert uses of force, so much the better. If doing
so contributed to the kind of real consultation between politicians not dependent
on one another that was the point of the process for setting in motion covert action,
better still. Surely, the first task is to give Congress something like the consultative
role in open war-making that it now has in covert.
See, e.g., the colloquy between Ray Cline and George Ball in Should the U.S. Fight
Secret Wars?, Harpers, Sept. 1984, at 33-47.
See reports in the Washington Post, Nov. 25, 1992, and the N.Y. Times, Feb. 7, 9,
and June 16, 1992.
22 U.S.C. § 2422 ( 1988), section 622 of the Foreign Assistance Act of 1974,
repealed in 1991 as part of the Intelligence Oversight Act of 1991, Pub. L. No. 102-88, 105
50 U.S.C. § 413 ( 1988), amended in 1991.
50 U.S.C. § 413 ( 1991), Pub. L. No. 102-88. The new law retained the term "timely
fashion" (in the face of a presidential veto), but Congress made clear in its legislative
history that it intends the language to mean no more than a couple of days. S. Rep. No.
102-85, at 39-41, reprinted in 1991 U.S. Code Cong. & Admin. News232-34.
My version is in Intelligence: Welcome to the American Government, in A Question
of Balance: The President, the Congress and Foreign Policy (
Thomas E. Mann, ed., 1990); see also the congressional investigation, Report of the Congressional Committees Investigating the Iran-Contra Affair, H. Rep. No. 100-433, S. Rep. No. 100-216, 100th Cong., 1st
Sess. ( 1987) ( "Iran-Contra Report"); and the earlier Report of the President's Special
Review Board, known as the Tower commission after its chairman, former Senator John
Tower, reprinted by Bantam and Times Books in 1987 ( "Tower Commission Report").
See Iran-Contra Report, supra note 6, at 41, 59-61, 72-75.
The quote and the estimate are both from the Iran-Contra Report, supra note 6, at 37 & 4.
It was this delay that the Justice Department's Office of Legal Counsel stated was
in the confines of the 1980 Intelligence Oversight Act. 'The President's Compliance with
the 'Timely Notification' Requirement of Section 501(b) of the National Security Act"
(known as the Cooper Memorandum), reprinted in Hearings on Oversight Legislation