79 Daniel P. Moynihan, “System of Secrecy Has Served Liars Well,” Albany (NY) Times Union (May 3, 1992), p. A17, reprinted in Center for National Security Studies, First Principles 17 (July 1992), pp. 11–12.
80 For his reflections on this experience, see Daniel P. Moynihan, Secrecy (New Haven, CT: Yale University Press, 1998). See also: Michael J. Glennon, National Security and Double Government (New York: Oxford University Press, 2015); and F.A.O. Schwarz, Jr., Democracy in the Dark: The Seduction of Government Secrecy (New York: Free Press, 2015).
81 Johnson, A Season of Inquiry Revisited.
82 NSA Deputy Director Benson Buffham, testimony, Hearings: The National Security Agency and Fourth Amendment Rights, Vol. 5, Church Committee, p. 45.
5
Safeguards against the Abuse of Secret Power
On December 6, 1977, the House Permanent Select Committee on Intelligence (HPSCI) convened to hear Admiral Stansfield Turner, DCI for President Jimmy Carter, present his first briefing on a presidential covert action approval. The Committee had only recently come into existence, in response to congressional investigations in 1975–76 that revealed widespread violations of domestic law by the Intelligence Community. Moving more quickly, senators across the Hill had already put in place their own new intelligence oversight committee in 1976: the Senate Select Committee on Intelligence (SSCI). Comporting with congressional tradition, each panel was known informally by the name of its chair, the Boland Committee in the House (after Edward P. “Eddie” Boland, D, Massachusetts) and the Inouye Committee in the Senate (after Daniel K. Inouye, D, Hawaii).
A sixty-five-year-old bachelor with a legendary baritone singing voice that in the right Irish pub softened his otherwise stern disposition, Chairman Boland was a force to be reckoned with in the House of Representatives. He was a former roommate and close confidant of the Speaker, Thomas “Tip” O’Neill (another Boston Democrat equally at home in Irish pubs), and a senior member of the almighty Appropriations Committee. Boland eschewed the arrogance of many of those in lofty positions in Washington, but he was in the habit of getting his way. On this morning in HPSCI's suite of offices near the Capitol Rotunda, well guarded by police, Boland rose to greet Admiral Turner as he entered the low-ceiling, bunker-like hearing room accompanied by aides. It was the DCI's first trip to HPSCI's quarters. Seven of the panel's thirteen members had shown up for the session, plus the three Committee staffers allowed to attend this particularly sensitive meeting. All were curious to meet the President's spy chief. The other six members evidently had duties they deemed more pressing than this opportunity to participate in the Committee's first top secret covert action briefing. As the staff director of HPSCI's Oversight Subcommittee, I was one of the staff aides at the meeting.
Turner carried himself with an air of supreme confidence. It was rumored that he had worn a Superman costume to an NSC meeting as a joke, early in the Carter Administration. Not everyone on the Council was amused. Ruggedly handsome, stocky, and silver-haired, Turner had been a pugnacious middle guard on the Naval Academy football team, had won a Rhodes Scholarship in his senior year, and then raced through the naval ranks to an admiralty. The position of Chief of Naval Operations was said to be his prime objective, after this interlude at the CIA, a post for which he had been recruited by an admiring classmate, Jimmy Carter.
The DCI nodded cordially to the Chairman and the other Committee members who were seated around a thick mahogany bench in front of a table that awaited the Admiral and his entourage. After an exchange of pleasantries and some mild grumbling about DC traffic congestion, Turner pulled a prepared statement from his briefcase and took less than five minutes to present the basics to the Committee about President Carter's recent approval (a “finding”) for a covert action – a briefing required by law ever since the passage of the Hughes–Ryan Act in December 1974.
Once Turner had completed his brief statement, silence filled the room, disturbed only by the hum of neon lights behind a latticework of wooden slats on the ceiling. The lawmakers at first assumed the DCI was just pausing for a drink of water, but instead Turner looked around the room at the members and grinned. “That's it,” he said.
Representative Roman Mazzoli, a short, feisty Democrat from Kentucky, cleared his throat and proceeded to pick apart the covert action from A to Z. The target was an insignificant country; the operation cost too much; the briefing had been vague. Turner stared at the notebook on the table in front of him. He clenched his teeth and flexed the muscles that lined his jaw. When Mazzoli finished, the DCI offered a spirited defense of the operation. The Kentuckian remained skeptical and presented another round of objections.
Chairman Boland interceded. “I'd like to have a serious debate,” he said, “but this is not the place.” One could only wonder why this was not the place. After all, was this not a closed meeting within the inner sanctum of the HPSCI offices, guarded by Capitol Hill's finest and periodically “swept” to ensure that no listening devices were present? Was it not the duty of the new Committee to review the activities of the nation's secret espionage organizations, perhaps especially covert actions?
“I don't want any adversary proceedings between this Committee and the intelligence agencies,” Boland added, with furrowed eyebrows and the implicit suggestion that the Admiral had done his duty and could now depart. A lowly junior member of the Congress, Mazzoli sank back into his chair, with a mixture of shock and vexation registering on his face. A few of the Committee members looked at Boland in dismay, but none came to Mazzoli's rescue. This was, after all, Edward P. Boland, a man who could make or break a career for anyone who sought funding for their district from the House Appropriations Committee – in other words, every member of Congress. Crossing swords with a committee chairman could be unhealthy, and doubly so when he was the Speaker's best pal and someone highly placed on the House money committee. Boland adjourned the session and Admiral Turner left the room wreathed in smiles.
The HPSCI Chairman had objected to Mazzoli's cross-examination because of the experience that the House of Representatives had recently endured with the Pike Committee, led by Otis Pike (D, New York). In 1975, the House established the Pike Committee as a counterpart to the Senate's Church Committee, both created to examine charges of CIA domestic spying. A former Marine aviator and a likable, fair-minded individual, Pike nonetheless proved unable to control his investigative panel and it self-destructed, pulled in a dozen different directions by a politically diverse membership and an overzealous staff. The Committee alienated other House members, who ultimately refused to endorse its final report or even release it to the public in a sanitized (declassified) form. In a blatant breach of security provisions, some still unknown person (or persons) leaked the top secret report to the journalist Daniel Schorr, who in turn passed it along to the Village Voice, a left-leaning New York City newspaper. Whatever remaining shred of respectability the Pike panel still possessed was now obliterated.
Two years following this egregious leak, Edward Boland was determined to demonstrate that the House could be trusted with classified information and could work in harmony with the DCI and other components of the Intelligence Community. Congress and the nation's spies would have a new, cooperative relationship. Debates with the DCI, if necessary, would be conducted by Boland in the confines of his office, not before the full HPSCI membership. As Boland and the Speaker agreed, this was no longer a time for heated rhetoric and confrontation; this was a time for peace between the branches. Comity would trump conflict. The Boland Committee would not be Son of Pike. While it was understandable that the HPSCI Chairman had no intention of seeing his new committee discredited as the Pike panel had been, Boland's passive attitude toward the role of the House in supervising intelligence operations was bound to signal to the DCI and every other intelligence officer that the new watchdog lacked teeth and wouldn't even bark. Here were shades of the slumbering senator in the introduction to Chapter 3, who opposed “parliamentary activities
” in the 1950s.
Boland's philosophy was about to be tested more rigorously, however, by a few members of his Committee. Admiral Turner returned to the HPSCI hearing room a few weeks later with another covert action finding signed by President Carter. On this occasion, the DCI found on the premises a congressional transcriber, known on the Hill as a “recorder.” This individual, carefully screened by the FBI and given a top secret clearance (as were the Committee's three aides in the room), was in attendance to keep a verbatim record of what was said by the Intelligence Director and his aides during the briefing, as well as by the lawmakers in attendance. Turner began his briefing, but kept his eye on the recorder. After only two minutes, the Admiral abruptly stopped his review of the covert action, having concluded – as he told Boland and the rest of the Committee (eleven members strong this time) – that, after further thought, he had decided that to allow a verbatim record of the briefing would be a breach of security. He would discontinue the briefing until the recorder had departed. For almost a full minute, only the hum of the neon lights could be heard in the tomb-like quiet of the room.
Boland finally interrupted the silence. “All right,” he said, “we'll dispense with the recorder.”
As the recorder began to gather his equipment for an exit, one of the HPSCI aides slipped a note to Les Aspin (D, Wisconsin), a junior member of the Committee. “We must have a record of these briefings,” emphasized the note. “How else are we going to have any memory of what the DCI said, and whether – a year from now – the CIA is living up to his assurances? It'll be the Agency's recollection against ours.” The aide was suggesting that Aspin walk the plank, with Captain Boland glowering from the bridge. Aspin, though, understood the importance of a written record for holding officials to account, and he also had something of a swashbuckling streak. He spoke up immediately against dismissing the reporter. Boland looked down the table in his direction with a scowl on his face. When Mazzoli seconded Aspin's request, Boland's countenance grew darker.
With the grim look of a headmaster about to frogmarch two disobedient schoolboys from the classroom, Boland repeated that a recorder was unnecessary. In support of the Chairman, Admiral Turner said that he would leave behind a copy of the short presidential statement of approval. Aspin insisted, however, that the finding itself – a highly abbreviated synopsis of the target and the scope of the covert action – was insufficient. (For a rare example of a published finding, see Figure 5.1.) Far more important was the DCI's follow-up explanation about the operation's goals, methods, costs, and risks. Unimpressed by the young upstarts Aspin and Mazzoli, Chairman Boland again ordered the hapless recorder, caught in the middle of this exchange, to leave the premises.
Figure 5.1 An example of a statement accompanying a presidentially approved covert action: the contra portion of the Iran–contra finding, 1981
Source: “Presidential Finding on Central America, N16574,” Public Papers of the President: Ronald Reagan (Washington, D.C.: U.S. Government Printing Office, 1986). The President approved the finding on March 9, 1981. Originally top secret, it was partially declassified during hearings into the Iran–contra scandal in 1987. The “purpose” section is succinct, leaving considerable leeway for the CIA to fill in the details during implementation. When Congress passed the Boland Amendments to prohibit further covert actions in Nicaragua, the Reagan Administration moved underground and created “The Enterprise” to carry on these operations without the knowledge of Congress.
At this point, Aspin thrust his head and shoulders across the green baize bench top and stared along its curvature toward Boland. “I call for a vote on this matter, Mr. Chairman,” Aspin said coldly. A crisp “second” came from Mazzoli. Boland's face changed color from a dark hue to a deep shade of crimson as he pushed his chair back from the bench in anger and disgust. He ordered the Committee clerk to call the roll. In the boxing ring of House politics, Les Aspin and his sidekick Roman Mazzoli had just bloodied the nose of a House heavyweight champion.
The Committee clerk slowly read the names of those Committee members present. When the tally came to an end, by a margin of a single vote – six to five – Aspin had won the right for HPSCI to have a verbatim record of the full DCI briefing on a covert action proposal. By implication, this principle would apply as well to any other briefing the Committee deemed important enough to require an accurate, written account. Against his will, Eddie Boland had been forced into a more serious form of intelligence oversight, one that would allow HPSCI lawmakers and their staff to monitor the ongoing performance of the secret agencies in light of promises made by the DCI during committee hearings. Word of this confrontation soon made its way to the other side of the Hill and members of the Senate Intelligence Committee demanded to have their own recorder to ensure a reliable memory for senators about promises from the nation's spy chief during briefings.
When a new administration came to town led by President Ronald Reagan, the Intelligence Community changed leaders from Stansfield Turner to William J. Casey, a businessman and former national presidential campaign manager for the new President. A curmudgeon who carried no brief for the idea of congressional intelligence accountability, Casey – soon to be the father of the Iran–contra scandal – quickly locked horns with Boland and his Senate counterpart, the arch-CIA defender Barry Goldwater (R, Arizona), the SSCI Chairman. Thanks largely to Casey's pitbull personality, Boland soon came to appreciate the merits of vigilant intelligence oversight as propounded by Aspin and Mazzoli. To everyone's amazement – perhaps even his own – so did Senator Goldwater, who at one time had been even more willing than Boland to place the goal of warm relations with the secret agencies high above any attempt at a rigorous review of their operations.
The evolution of safeguards against intelligence abuse in the United States
The Era of Trust (1787–1974)
The approach toward intelligence accountability chosen by Chairman Boland in his early years as HPSCI Chairman – that is, a posture of benign neglect – had prevailed throughout the long sweep of American history from the nation's founding in 1787 until the domestic spy scandals of 1974. Cartoonist Auth of the Philadelphia Inquirer depicted the “footsie” relationship between the CIA and lawmakers during the early decades of the Cold War (see Figure 5.2). Throughout this Era of Trust, intelligence was set apart from the rest of the government. The dominant attitude among members of Congress was that the honorable men and women in the intelligence agencies would have to be trusted to protect the United States against dangerous and unscrupulous forces at home and abroad. “No, no, my boy, don't tell me,” a leading Senate overseer, John Stennis (D, Mississippi), told DCI James R. Schlesinger in 1973 when the Director attempted to provide a full accounting of the CIA's operations abroad. “Just go ahead and do it, but I don't want to know.”1
Figure 5.2 Auth on the relationship between Congress and the CIA prior to 1974
Source: Auth, Philadelphia Inquirer (1976). Used with permission.
While most of the nation's intelligence officers have indeed been honorable men and women, the writers of the Constitution could have predicted that eventually power – perhaps especially secret power – would be misused. Resonating this bedrock principle of government accountability, Supreme Court Justice Louis Brandeis reminded Americans in a 1926 opinion that the purpose of the Constitution had been “not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”2
Yet this sound doctrine often gave way to the exigencies of fighting against enemies of the state, whether the Barbary pirates of yore, communists of the Cold War, or terrorists in the contemporary setting. The United States, the world's first democracy, would follow the practice of regimes around the world and throughout history; it would set its secret agencies outside the framework of checks and
balances that is the hallmark of open and free societies. A hostile world demanded no less; efficiency would have to take pride of place over civil liberties.
This is not to say that the U.S. intelligence agencies were devoid of all vestiges of accountability. During the Cold War and since, most of their activities were and continue to be approved by officials in the White House and the National Security Council (NSC). Further, from time to time, the CIA would report (or at least try to report) to lawmakers – though often only to find deaf ears like those of Stennis, or closed eyes like the sleeping senator in the introduction to Chapter 3. Now and then, as in the aftermath of the Bay of Pigs fiasco, the embarrassing U-2 shoot-down over the Soviet Union in 1960, and the controversy surrounding CIA subsidies for the National Student Association in 1968, a few lawmakers would call for inquiries and intelligence reform; but there were never enough reformers in Congress to bring about significant change. While David M. Barrett correctly maintains that the devotion of lawmakers to intelligence oversight has been underrated in the scholarly and popular literature, congressional approval of intelligence programs seems nonetheless to have been highly discretionary during the Era of Trust. For the most part, presidents and lawmakers provided DCIs and other intelligence managers with broad authority to conduct secret operations at home and abroad as they saw fit.3
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