[Congressional Record: July 9, 1997 (House)]
[Page H4948-H4985]
INTELLIGENCE AUTHORIZATION ACT FOR FISCAL YEAR 1998
[...]
Amendment No. 2 Offered by Mr. Conyers
Mr. CONYERS. Mr. Chairman, I offer an amendment.
The CHAIRMAN. Was the amendment printed in the Congressional Record?
Mr. CONYERS. Yes, Mr. Chairman, it was.
The CHAIRMAN. The Clerk will report the amendment.
The Clerk read as follows:
Amendment offered by Mr. Conyers: Page 10, after line 15,
insert the following new section:
SEC. 306. ANNUAL STATEMENT OF THE TOTAL AMOUNT OF
INTELLIGENCE EXPENDITURES FOR THE CURRENT AND
SUCCEEDING FISCAL YEARS.
At the time of submission of the budget of the United
States Government submitted for fiscal year 1999 under
section 1105(a) of title 31, United States Code, and for each
fiscal year thereafter, the President shall submit to
Congress a separate, unclassified statement of the
appropriations and proposed appropriations for the current
fiscal year, and the amount of appropriations requested for
the fiscal year for which the budget is submitted, for
national and tactical intelligence activities, including
activities carried out under the budget of the Department of
Defense to collect, analyze, produce, disseminate, or support
the collection of intelligence.
Mr. CONYERS (during the reading). Mr. Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.
The CHAIRMAN. Is there objection to the request of the gentleman from
Michigan?
There was no objection.
Mr. GOSS. Mr. Chairman, in order to assist Members planning, which we
are trying to do, I ask unanimous consent that debate on the Conyers
amendment and all amendments thereto be limited to 40 minutes, equally
divided.
The CHAIRMAN. Is there objection to the request of the gentleman from
Florida?
Mr. CONYERS. Mr. Chairman, reserving the right to object, I support a
limitation for this reason: This is precisely the same amendment that
was offered a year ago, and it received 176 votes. Although we have a
lot of speakers, I think the lateness of the hour and the fact that
this bill has been brought under the 5-minute rule requires that we
accede to the chairman's request.
Mr. Chairman, I withdraw my reservation of objection.
The CHAIRMAN. Is there objection to the request of the gentleman from
Florida?
There was no objection.
The CHAIRMAN. The gentleman from Michigan [Mr. Conyers] and the
gentleman from Florida [Mr. Goss] each will control 20 minutes.
The Chair recognizes the gentleman from Michigan [Mr. Conyers].
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
This amendment is precisely the same one that was voted on last year
that makes this modest proposal, that the aggregate amounts of all
intelligence agencies be revealed in the President's budget and in the
final appropriation for intelligence. It is a simple compilation, and I
know some people did know this, of 14 different intelligence agencies
in the military budget. It has been examined with great care by the
Commission on the Role and Capabilities in the Intelligence Community,
chaired by the Secretary, former Secretary of Defense Harold Brown, by
Warren Rudman, and even the gentleman from Florida [Mr. Goss] served
with some distinction on this committee. They recommend this.
The Council on Foreign Relations recommends this. In last year's
Senate bill, this provision was included. I apologize, it is not
radical, it is not revolutionary, it is embarrassingly modest, the
aggregate figure of 14 intelligence agencies.
The President of the United States has indicated that he would accede
to this request. The ranking member of the Committee on National
Security has supported us year after year, so we are only doing what
other allies of ours do on this subject. England reveals their
aggregate figure, Canada reveals their aggregate figure, Germany
reveals their aggregate figure, Australia reveals their aggregate
figure. We are moving in the same way that the Framers of the
Constitution moved in 1790 and 1793 when they made public disclosure of
their aggregate sum even though British spying and counterespionage was
at a very intense level.
I urge that Members support the measure. I would like to point out
for those who will be spared this argument of why you do not go up to
the green room and look at the intelligence figures. First of all,
there are 14 of them. This is why only four Members have done this.
Second, you are then bound by the House rules of secrecy and who knows
what you can or cannot say.
What we are saying is that for two reasons, we need this amendment
very badly. One is that we must not undermine the legitimacy of the
need for secrecy where it does exist. Secondly, unless we reveal the
aggregate budget, we will not gain the support of the American people.
For those reasons, I urge that we please support this amendment when
it comes to a vote.
Mr. Chairman, I rise today to offer a modest but long overdue
proposal. My amendment would simply declassify the aggregate amount of
the intelligence budget. Specifically, it would require the President
to provide an unclassified statement of the bottom-line number of the
current appropriated amount and the amount being requested. It would
not disclose any operations. It would not reveal any agency budgets. It
would simply provide the American
[[Page H4971]]
taxpayers with information they are clearly entitled to.
The amendment is modeled after my bill, H.R. 753, the Intelligence
Budget Accountability Act, a bill with 83 Democratic and Republican
cosponsors. That bill, and the amendment I am offering today, seek to
implement a key recommendation of a congressionally-mandated Commission
on Intelligence Reform.
The Commission on the Roles and Capabilities of the United States
Intelligence Community was chaired by former Secretary of Defense
Harold Brown and former Republican Senator Warren Rudman. Dr. Brown,
who is now at the Center for Strategic and International Studies, and
Senator Rudman, who served on the Intelligence Committee, both endorsed
the Intelligence Budget Accountability Act in a letter. Even a former
Director of Central Intelligence, Stansfield Turner, wrote me a letter
supporting my bill. I am submitting all these materials for the Record.
I would also like to point out that the gentleman from Florida who is
the current chairman of the House Intelligence Committee sat on the
Brown-Rudman Commission when it recommended disclosure of the
intelligence budget. When the Commission's report came out, the White
House publicly declared that ``The President is persuaded that
disclosure of the annual budget for intelligence should be made public,
and that this can be done without any harm to intelligence
activities.'' So my amendment is really a mainstream proposal, with the
support of Republicans and Democrats in and out of government.
During my service as chairman of the Government Operations Committee,
I became intimately familiar with mounds of classified information and
with secrecy policy. I became convinced that too much secrecy is not
only counterproductive to our democracy, but it also undermines the
credibility of our legitimate secrets.
Another congressionally-mandated study, the Commission on Protecting
and Reducing Government Secrecy made some of the same observations.
This Commission was chaired by Senator Daniel Patrick Moynihan, and the
gentleman from Texas who served as the chair of the House Intelligence
Committee last year. It observed in its report that ``Secrecy exists to
protect national security, not government officials and not agencies.''
It also noted that the expansion of the national security bureaucracy
has far outpaced oversight by the public and the Congress.
It's time to stop blurring legitimate secrecy that serves our
national defense with arbitrary secrecy that is used to avoid the
debate on the balanced budget.
You will likely hear some of my colleagues today say that once we
disclose the aggregate figure on the intelligence budget, we'll be
starting down a slippery slope. This is absurd. The Defense
Appropriations Committee in 1994 accidentally disclosed not only the
total figure, but even an agency by agency breakdown. Three years later
we're still waiting to hear how that harmed our national security.
You will also likely hear some say today that it is currently within
the President's power to disclose the intelligence budget, and if he
wants to he can. Talk about debating the chicken and the egg. That is
precisely what this amendment would do anyway: require the President to
submit an unclassified statement of the current appropriated amount and
the current requested amount.
Finally, as a member of the Judiciary Committee, I would like to
mention that the Constitution wanted all arms of the government to be
fiscally accountable. Article I, section 9, clause 7 states that ``No
Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.''
I think if the Framers could disclose the aggregate figure of their
secret expenditures after the Revolutionary War, then we sure can
disclose such a sum after the cold war. I urge a ``yes'' vote on the
amendment.
Mr. Chairman, I include the following:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Intelligence Budget
Accountability Act of 1997''.
SEC. 2. PURPOSE.
It is the purpose of this Act to require the publication of
the aggregate intelligence budget figure to provide a more
thorough accounting of Government expenditures as required by
article I, section 9, clause 7 of the Constitution.
SEC. 3. FINDINGS.
The Congress finds that--
(1) article I, section 9, clause 7 of the Constitution
states that ``No Money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all
public Money shall be published from time to time.'';
(2) during the Cold War the United States did not provide
to the American people a ``regular Statement and Account of
the . . . Expenditures'' for intelligence activities;
(3) the failure to provide to the American people a
statement of the total amount of expenditures on intelligence
activities prevents them from participating in an informed,
democratic decision concerning the appropriate level for such
expenditures; and
(4) the Report of the Commission on the Roles and
Capabilities of the United States Intelligence Community
recommended the disclosure of ``the total amount of money
appropriated for intelligence activities during the current
fiscal year and the total amount being requested for the next
fiscal year''.
SEC. 4. ANNUAL STATEMENT OF THE TOTAL AMOUNT OF INTELLIGENCE
EXPENDITURES FOR THE PRECEDING FISCAL YEAR.
Section 1105(a) of title 31, United States Code, is amended
by adding at the end thereof the following new paragraph:
``(31) a separate, unclassified statement of the
appropriations and proposed appropriations for the current
fiscal year, and the amount of appropriations requested for
the fiscal year for which the budget is submitted, for
national and tactical intelligence activities, including
activities carried out under the budget of the Department of
Defense to collect, analyze, produce, disseminate, or support
the collection of intelligence.''.
____
Original Cosponsors
Pete Stark, Lynn Rivers, Luis Gutierrez, Maurice Hinchey,
Sam Farr, David Bonior, Earl Blumenauer, George Miller (CA),
Bob Filner, Peter DeFazio, Louise Slaughter, Ron Dellums,
Nancy Pelosi, Jerrold Nadler, Jim Oberstar, Cynthia McKinney,
Mel Watt (NC), Sidney Yates, Nita Lowey, John Olver, Anna
Eshoo, Ed Pastor, Nydia Velazquez.
Additional Cosponsors
Norm Dicks, Barney Frank (MA), Bennie Thompson, Eleanor-
Holmes Norton, Earl Pomeroy, Sheila Jackson-Lee, Bernie
Sanders, Bobby Rush, Jim McGovern, Sander Levin, Lee
Hamilton, Bill Luther, John Lewis (GA), Adam Smith (WA),
Martin Meehan, Danny Davis (IL), Floyd Flake, Lane Evans,
Elizabeth Furse, David Minge, Xavier Becerra, John Tierney,
George Brown (CA), Neil Abercrombie, Chaka Fattah, Ron Kind,
Debbie Stabenow, Maxine Waters, Diana DeGette, Carolyn
Maloney (NY), Tom Allen, Vic Fazio, Ron Paul, Henry Gonzalez,
Lucille Roybal-Allard, Tom Barrett (WI), Major Owens, Ted
Strickland, William Delahunt, Rod Blagojevich, Carrie Meek,
Jim Clyburn, Lynn Woolsey, Dennis Kucinich, William Coyne,
Eddie Bernice Johnson, Ellen Tauscher, Chris Shays, Darlene
Hooley, Esteban Torres, James Traficant, Charles Rangel,
Robert Underwood, John Spratt, David Skaggs, James Maloney
(CT), Donna Christian-Green, Joe Kennedy (MA), Alcee Hastings
(FL), Julian Dixon (CA), Sam Gejdenson (CT).
____
House of Representatives,
Washington, DC, March 31, 1997.
Support Fiscal Accountability: Cosponsor H.R. 753--The Intelligence
Budget Accountability Act
Dear Colleague: I recently re-introduced the Intelligence
Budget Accountability Act. This bill will make public the
total appropriations for the current fiscal year and the
total amount being requested for the new fiscal year. The
intelligence budget includes funding for the CIA, the
National Security Agency and other intelligence services. It
also includes funding for the intelligence function of
agencies such as the DEA and the FBI. If Congress is going to
honestly deal with balancing the budget, it only makes sense
that it at least acknowledge the tens of billions of dollars
it spends on intelligence every year.
Keeping the intelligence budget secret is unnecessary after
the demise of the cold war, unfair to American taxpayers, and
inconsistent with the accountability requirements of the
Constitution. The Constitution clearly states that ``No Money
shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and
Account of the Receipts and Expenditures of all public Money
shall be published from time to time.'' Half a century and
hundreds of billions of dollars later, it is time that we
begin meeting our obligation to inform the public how their
tax dollars are spent.
Official public disclosure of the intelligence budget is
long overdue. Last year's Congressionally mandated report to
President Clinton by the Brown-Aspin Commission entitled
``Preparing for the 21st Century: An Appraisal of U.S.
Intelligence'' recommended opening up the spy budget. It
proposed that ``at the beginning of each congressional budget
cycle, the President or a designee disclose the total amount
of money appropriated for intelligence activities for the
current fiscal year . . . and the total amount being
requested for the next fiscal year.'' The Senate Intelligence
Committee unsuccessfully sought to implement this
recommendation during last year's intelligence authorization
process.
A copy of the bill is on the reverse. If you would like to
co-sponsor or if you need more information please do not
hesitate to contact Mr. Carl LeVan of my staff at 5-5126.
Sincerely,
John Conyers, Jr.,
Member of Congress.
[[Page H4972]]
____
Congress of the United States,
Washington, DC, April 30, 1997.
Former Director of Central Intelligence Stansfield Turner Supports
Making the Intelligence Budget Total Public
Dear Colleague: We are writing to bring a letter (on the
reverse) to your attention from Admiral Stansfield Turner,
the former Director of Central Intelligence, and to urge your
support for the Intelligence Budget Accountability Act of
1997. This legislation would declassify the aggregate
figure--just the bottom line number--of the intelligence
budget for the current fiscal year and the amount requested
for the next fiscal year.
The intelligence budget includes spending for the CIA and a
dozen other agencies with an intelligence function. This
figure has been classified by the executive branch since the
birth of the modern national security establishment in 1947.
We believe, like Admiral Turner, that this multibillion
dollar budget can be made public without harm to the national
security of the United States.
We hope you will join the growing bipartisan list of
members who have decided to co-sponsor H.R. 753. If you have
any questions, or would like to co-sponsor, please do not
hesitate to call Mr. Carl LeVan in the office of Rep. Conyers
at 5-5126.
Sincerely,
John Conyers, Jr.
Lee Hamilton.
Bill Luther.
Members of Congress.
____
Stansfield Turner,
February 7, 1997.
Hon. John Conyers, Jr.,
House of Representatives, Russell House Office Building,
Washington, DC.
Dear Representative Conyers: I am pleased that you are
again introducing legislation to require the open publication
of the aggregate intelligence budget figure.
It has been my opinion since shortly after becoming the
Director of Central Intelligence in 1977 that there would be
no harm to the country's security in releasing such a figure.
I agree fully with the emphasis in the legislation on the
importance of all government agencies being accountable to
the public. While total accountability may not be feasible in
the case of intelligence budget, just one aggregate figure
certainly is.
I wish you every success.
Yours,
Adm. Stansfield Turner,
U.S. Navy (retired).
____
House of Representatives,
April 8, 1997.
Common Sense Budget Accountability--H.R. 753, the Intelligence Budget
Accountability Act
Dear Colleague: I am writing to urge your support of H.R.
753, the Intelligence Budget Accountability Act and to bring
a letter (on the reverse) from Taxpayers for Common $ense to
your attention. This important legislation, introduced by
Representative Conyers and twenty other Members of Congress,
would simply declassify the aggregate figure of the
intelligence budget.
The intelligence budget, which is widely believed to be
over $30 billion a year, has been classified for fifty years.
Now that the Cold War is over and the war on the deficit has
begun, it is time for a fair accounting of our expenses. As
Taxpayers for Common $ense point out in their letter, ``the
intelligence agencies, just like all other federal agencies,
should be accountable to those who pay their bills--the
taxpayers.''
Unaccountable spending has been a demonstrated problem in
the past with the intelligence agencies. For example, we
learned in 1994 that the National Reconnaissance Office
(NRO), which handles spy satellites, was building a luxurious
$300 million complex with an extra fourteen acres. Then the
public found out that the NRO had accumulated $4 billion in
unspent funds, half of which it had simply lost track of. An
unclassified bottom line number of the intelligence spending
would help end the excessive secrecy that makes this kind of
budget banditry possible.
Certainly if we are serious about balancing the budget, we
should know at least in a general way where billions of
dollars are spent. Our nation needs to be secure from foreign
threats, but our budget process also must maintain a sense of
integrity. An official acknowledgment of how much we spend on
intelligence would help provide that integrity. H.R. 753
meets this criteria by requiring the current requested and
appropriated amounts be unclassified.
If you have any questions or would like to cosponsor,
please contact Tim Bromelkamp in the office of Representative
Minge at 5-2331 or Carl LeVan in the office of Representative
Conyers at 5-5126.
Sincerely,
David Minge,
Member of Congress.
____
Taxpayers for Common $ense,
Washington, DC, March 17, 1997.
Taxpayers ``Need to Know'' Where the Intelligence Budget Goes--
Cosponsor Conyers Bill
Dear Representative: Taxpayers for Common $ense urge you to
cosponsor H.R. 753, the Intelligence Budget Accountability
Act. Sponsored by Rep. John Conyers, this bill would require
that the aggregate intelligence budget figure be disclosed to
the public. The intelligence agencies, just like all other
federal agencies, should be accountable to those who pay
their bills--the taxpayers.
Disclosing the intelligence agencies' aggregate budget
figure does not threaten national security. In 1996, the
Congressionally-mandated Brown-Aspin Commission declared that
classifying the aggregate budget figure is not a matter of
national security and the figure should be disclosed to the
public. Both President Clinton and the Senate Intelligence
Committee supported the Commission's conclusion. The Conyers
bill would simply require that the total amounts requested
and currently appropriated for intelligence activities should
be unclassified.
The intelligence agencies should not be allowed to keep
their multi-billion-dollar budget a secret. At a time when
all federal programs are under increased scrutiny and must
meticulously account for their spending, it is only fair that
the overall level of spending on intelligence be available to
the taxpayers. Taxpayers should know the amount spent on
intelligence in order to make informed choices regarding the
allocation of government funds.
In the military, secrets are shared only with those who
``need to know.'' Taxpayers for Common $ense urges that this
same standard be applied to the intelligence budget.
Taxpayers pay the intelligence budget, and their support and
trust is ultimately the strength of the intelligence
services. We urge you to defend the taxpayers' ``need to
know'' where their money goes by supporting the Conyers bill.
Sincerely,
Jill Lancelot,
Legislative Director.
____
Congress of the United States,
Washington, DC, May 22, 1997.
Hon. Harold Brown,
Counselor, Center for Strategic and International Studies,
Washington, DC
Hon. Warren Rudman,
Paul Weiss Rifkind Wharton & Garrison, Washington, DC
Dear Dr. Brown and Senator Rudman: Last year the Commission
on the Rules and Capabilities of the U.S. Intelligence
Community, which you cochaired, submitted its report to the
President and the Congress as mandated by the Fiscal Year
1995 Intelligence Authorization Act. One of the Commission's
recommendations was the disclosure of the aggregate figure of
the intelligence budget. The Intelligence Budget
Accountability Act, which we all strongly support, would
implement this key recommendation.
The intelligence budget has been classified by the
Executive branch since 1947. The Church Committee, the Pike
Committee and the Rockefeller Commission in the 1970's all
suggested some level of disclosure. Your Commission
specifically proposed that ``at the beginning of each
congressional budget cycle, the President or a designee
disclose the total amount of money appropriated for
intelligence activities for the current fiscal year and the
total amount being requested for the next fiscal year.'' H.R.
753, a bipartisan bill with 80 cosponsors, is modeled after
this recommendation and seeks to implement it precisely as
proposed in the Report.
We believe that secrecy is important to effective
intelligence, but it needs to be compatible with a democratic
form of government. As the Commission pointed out,
intelligence agencies need to be responsible ``not only to
the President, but to the elected representatives of the
people, and, ultimately to the people themselves. They are
funded by the American taxpayers.'' We agree with this
observation and would like to hear your opinion of the
proposed legislation which is enclosed.
Sincerely,
John Conyers, Jr.
Ronald V. Dellums.
Lee Hamilton.
Christopher Shays.
Members of Congress.
____
Center for Strategic &
International Studies,
Washington, DC, June 2, 1997
Hon. John Conyers, Jr.,
Hon. Ronald V. Dellums,
Hon. Lee Hamilton,
Hon. Christopher Shays,
House of Representatives,
Washington, DC.
Gentlemen: In response to your letter of May 22, I continue
to subscribe to the statement that you quote from the report
of the Commission on the Roles and Capabilities of the U.S.
Intelligence Community, recommending disclosure of the total
amount of money appropriated for intelligence activities
during the current fiscal year and the total amount being
requested for the next fiscal year. H.R. 753 appears to meet
this criterion and therefore I believe it would accomplish
the purpose of the Commission's recommendations. It is
important, in my judgment, that no breakdown of the total
into its components be made public. Senator Rudman joins me
in this response.
Sincerely,
Harold Brown.
Mr. Chairman, I reserve the balance of my time.
Mr. GOSS. Mr. Chairman, I yield such time as he may consume to the
gentleman from Illinois [Mr. Hyde],
[[Page H4973]]
the distinguished chairman of the Committee on the Judiciary, a
gentleman who is well versed on this issue.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Chairman, with some but not a great deal of reluctance,
I rise to oppose the amendment of my good friend from Michigan.
Traditionally, the aggregate amount of funds spent to support our
intelligence agencies has not been disseminated publicly. It is a
classified amount. However, it is not unavailable to this House. There
are six committees in Congress that have access to that number, three
in the House, three in the other body: The Permanent Select Committee
on Intelligence, the Committee on Appropriations, and the Committee on
National Security. Those committees are set up to receive this
information, they are cleared for top secret, and they have the ability
to absorb it and to do with it whatever is necessary in our democratic
process.
The classified records are available to be looked at. The gentleman
from Michigan [Mr. Conyers] objects to that because you are then bound
by an oath of secrecy. Well, then do not go look at it, but you have
got six committees in this Congress to get that information.
Why do we keep it secret? It is a mistake to think that the
intelligence budgets of these agencies is a static thing. There are
bumps. Sometimes it goes up, sometimes it goes down. What does that
signify? It means we may be working on an expensive new weapons system,
and that information ought not to be made available to those who wish
us harm. There is no urgency, there is no need for this to be made
public other than to tell the rest of the world or give them a hint as
to what we are doing and perhaps even why we are doing it. The amount
of money is overseen by six congressional committees bipartisanly. It
is available to anybody who has a burning need to know by going and
reviewing the classified annex. And so there is no need to violate what
has traditionally been the case; that is, keep the aggregate amount
confidential, keep it classified so that our adversaries, and believe
me there are some out there, do not have an idea or a clue as to what
we are working on.
With good wishes to my friend from Michigan, I just think his
amendment is wrong and I hope it is defeated.
Mr. CONYERS. Mr. Chairman, I yield myself 30 seconds, because the
amicable nature of the ranking member and the chairman of the Committee
on the Judiciary is very close, and I respect his learned judgment. But
this time he is up against the Secretary of Defense, the former
Secretary of the CIA. The gentleman from Florida [Mr. Goss] was on this
committee as well, the Committee on Foreign Relations in the other
body, the framers of the Constitution and 176 of his colleagues.
Mr. Chairman, I yield 3 minutes to the gentleman from Washington [Mr.
Dicks], the distinguished ranking member of the Permanent Select
Committee on Intelligence.
Mr. DICKS. Mr. Chairman, absent a clear national security interest,
information should not be classified. In fact, Executive Order 12,958,
which governs classification, prohibits classifying information unless
to do so is required to protect national security.
I do not think anybody can stand up here tonight and say that
disclosing the number, disclosing this number, is going to do anything
to harm national security. I do not believe a case can be made that the
aggregate budget figure for intelligence meets that standard. The
arguments that are made in favor of keeping the budget secret have
little to do with the number in question and more to do with the
potential damage that could occur if more information were released.
{time} 1745
Some people are afraid that public release of the intelligence budget
will lead to drastic cuts in intelligence spending. Not only is that an
improper reason for classification, but I firmly believe we can defend
the overall amount, as we just did, we spent on intelligence as well as
we will defend the overall amount we spend on defense. Releasing the
aggregate budget total changes business as usual, and some people are
understandably uncomfortable with changing the practices of 50 years.
But this is not a radical proposition. It is an idea that has been
endorsed by two panels of experienced and knowledgeable experts serving
on the Aspen Brown Commission and the Council on Foreign Relations.
The overall intelligence budget figure is a significant piece of
information by which the American people can judge the operations of
their Government. I believe we should tell the American people about
how we are spending their hard-earned money. We tell them what the
overall number for defense is; I do not see how we can then argue that
we cannot tell them what the overall number for intelligence is, and
frankly I think it would do a lot to clear up much of the confusion
that we have heard today on the floor about what this number is
because, as I said earlier, the number that we have heard is
inaccurate, significantly inaccurate.
So I rise in strong support of the Conyers amendment. I remember our
colleague, Congressman Glickman, who was chairman when we were in the
majority, was the first chairman of this committee to strongly endorse
this. I think it is time to do it, and I hope we can do it today on a
bipartisan basis.
Mr. GOSS. Mr. Chairman, I yield such time as he may consume to the
distinguished gentleman from California [Mr. Lewis], subcommittee
chairman.
Mr. HYDE. Mr. Chairman, will the gentleman yield?
Mr. LEWIS of California. I yield to the gentleman from Illinois.
Mr. HYDE. Mr. Chairman, I will be brief.
I just want to say to my friend, the gentleman from Washington [Mr.
Dicks], who surprises me that he is for disclosing this amount of
money, the truth is, of course, the aggregate figures do not tell us
anything. They give us a rough idea, but the next step is who is
getting what? If we want to know the aggregate, we want to know who is
spending it and for what purpose. What is the National Reconnaissance
Office spending? What is the CIA spending? What is the DIA spending?
And we want to break it down so it means something. That is the next
step. The aggregate figure does not really inform us.
But the gentleman and I know it is the opening wedge in a total lay
it on the table strategy, what agency is spending how much money, for
what systems, and for what covert activity and for what satellites, and
what are we spending overseas? And it never ends.
And so that is why it ought to remain secret, in my opinion.
Mr. LEWIS of California. Mr. Chairman, I must say following the
remarks of both the gentleman from Washington [Mr. Dicks] and the
gentleman from Illinois [Mr. Hyde] I cannot help but be a bit
disconcerted by that disconnect, for I am quite surprised at the
position of the gentleman from Washington [Mr. Dicks] as well. In the
short time, 4 years, that it has been my privilege to serve on this
committee, I have become very, very impressed by the fact that America
is pretty good at what they do. A combination of my service on the
defense subcommittee of Appropriations and this committee tells me that
America is more than just leading the world, we are the strength for
the future of peace in the world, in no small part because of the work
done by many of these agencies. But there is little doubt that those
who suggest that the gross number means almost nothing, there is
absolutely no doubt in my mind that underlying that is the balance. And
it is not the people here in this room who necessarily want to know
what may be all of the spending of some of our subagencies involved. It
is the people who would be our enemies who would like to have that
information.
Excellent work being done by the FBI as well as other agencies
relative to controlling the impact of drugs in our society, a
tremendous war developing there that will be very important to the
future of our youth. Absolutely no question that the impact that we are
beginning to have upon potential terrorists is very important as
related to this work.
There are those who love to see what our satellites are all about,
exactly what they mean and what we are spending. Indeed it is very
important that we recognize that it is the people who largely wish
America ill who like to have those kinds of details, and because of
that I am supporting the
[[Page H4974]]
chairman's position. I certainly would urge the ranking member to
reconsider his position, for America's future is involved in the work
that we are about in the Permanent Select Committee on Intelligence.
Mr. CONYERS. Mr. Chairman, I yield 30 seconds to the gentleman from
Washington [Mr. Dicks], the frequently talked about ranking member.
Mr. DICKS. Mr. Chairman, I want to say to my friend from California,
Mr. Lewis, and my friend, the gentleman from Illinois, Mr. Hyde, who
has served on this committee with great distinction, I still go back to
Executive Order 12958 which governs classification. It prohibits
classifying information unless to do so is required to protect national
security.
Now I do not see how anybody can make a case that this number has
anything to do with national security. It is the amount of money we
spend on intelligence, but by disclosing it I do not see how we in any
way endanger national security, and therefore we cannot classify it.
It is almost an open and shut case, and that is why I think the
gentleman from Michigan [Mr. Conyers] is correct in calling for this to
be disclosed.
Mr. CONYERS. Mr. Chairman, I yield myself 15 seconds because some may
be surprised at the gentleman from Washington [Mr. Dicks] but I am not
surprised at the gentleman from Illinois (Mr. Hyde). Mr. Hyde said it
makes hardly any difference what the aggregate amount would be. He is
worried about what comes after that. Well, we are not legislating about
after that, and he is quite right. It does not make any difference.
Mr. GOSS. Mr. Chairman, I yield myself such time as I may consume.
I think this is, as the gentleman from Michigan has said, a debate we
have had many times, and I tend to believe that not much has changed
and the previous wisdom we have had that it is correct, that the matter
should remain classified. I realize that the gentleman has quoted the
Aspen Brown report, and in fact I did dissent from the vote on that.
That was a consensus report. I argued for the position of keeping the
matter classified. In that particular group of people, it was not seen
that way. Not all of those people have had the same experience that
those of us on the Senate committee have had, and there is a legitimate
disagreement about this.
The other point I think is very important is that no good deed seems
to go unpunished, no matter what we do around here. I would point out,
and I am reading from the committee report, the committee has
authorized additional resources in the fiscal year 1998 budget for CIA
classification management, including declassification activities in
support of Executive Order 12958.
Now I know that the gentleman from Massachusetts [Mr. Frank] has a
cutting amendment we are going to hear, and I know the gentleman from
Vermont [Mr. Sanders] had a cutting amendment. Well yes, we did put
more money in this bill to get to the declassification question, and I
certainly believe as part of the declassification question we ought to
be examining the issue that the gentleman from Michigan [Mr. Conyers]
has raised. I think it is a very fair debate to ask and we should do it
in a comprehensive way.
So I am totally prepared to say that as part of the initiative of the
gentleman from Colorado [Mr. Skaggs] a very valued member on our
committee, to deal with declassification, that this should be part of
that study. I just do not want at this point to create an initiative to
go forward and say, well, we suddenly made a decision that really is of
interest in the Beltway, but not for the American people to suddenly
declassify this matter. It will be of interest to those who have
interests that are inimicable to the United States of America. They
would dearly love to have this information. The gentleman from Illinois
[Mr. Hyde] is right, it is a slippery slope.
Now I realize that there are some Members who serve on other
committees who would love to know what a percentage of the NRO budget
is so they can get their hand on a number and say, surely the interests
of my committee match this and surely, therefore, we could take a
little bit here and put a little bit there. But as the gentleman from
Washington [Mr. Dicks] has said, under 602(b) we are still in line, and
I think that is extremely important. So my colleagues can rest assured
that there is not really any opportunity here, there is no pork here,
this is all proper.
The other thing I have got to point out on this besides the slippery
slope and the fact that there is not a clamor across this country to
have this information, I hardly ever at a town meeting get asked, gee,
exactly how much money is being spent on intelligence? Sometimes I get
asked exactly what is intelligence doing, and there is this perception
that it is all CIA, and as the gentleman from Washington [Mr. Dicks]
has properly said earlier in this debate today, it is much, much more.
The CIA is indeed a very minor part of it. I am very happy to say it is
a minor part of it. I do not think I ought to say specifically what
that minor part is though.
The other thing I have got to point out here, the President of the
United States in fact can go ahead and release information. He has that
ability. The President does not do that. The President has made the
choice to keep the matter classified.
Before we go off and do something like this, I think it should be
properly studied and have the proper input from our folks in the other
part of Government, our sister branch of Government. After all, he is
charged with the national security. It is a matter of the Constitution,
it is a matter of his specific charge, and he can declassify when he
chooses with a stroke of his pen. Every President since Harry Truman
has decided to send us the bill with the number classified. I suspect
there is a reason for that, and I suspect that we probably ought to
take the President and his people into consideration before we go off
in a new direction.
Mr. Chairman, I reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the gentleman from
Colorado [Mr. Skaggs].
Mr. SKAGGS. Mr. Chairman, I thank the gentleman for the time.
Our distinguished friend from Illinois has really conceded the point.
This proposal will not hurt national security. What will it do? It will
enhance our responsibility to the American public for them to have as
much information as possible about their government. And I think it is
irrelevant whether we get asked at town meetings about this. I happen
to, actually. And what does the American public learn? They have a
sense of proportion: How much of our resources are we putting to this
purpose? They have, I would concede, no particular need to know the
details of particular sub-agencies. But it is a legitimate matter for
them to have a sense in this large sense what their government is about
in the intelligence field relative to other things that they spend
their tax money for.
Really all that we have by way of argument against this proposal is
the slippery slope argument. What does that really mean? It means that
we do not trust future Congresses to exercise judgment about what will
and what will not protect the national security of this country.
I think that is a highly rude position to take relative to our
successors in these jobs. They will be able to figure this out. They
will know whether or not further disclosures make any sense. I do not
think that they will err in that judgment, and we can trust them to do
so.
On the other hand, the default position always ought to be if this
information is not going to damage national security, let us make it
available to the public. The real national security issue here is the
strength of the democracy and the willingness of the American people to
trust a government that is leveling with them whenever it possibly can.
Mr. GOSS. Mr. Chairman, will the gentleman yield for a brief
question?
The CHAIRMAN. The time of the gentleman from Colorado has expired.
Mr. GOSS. Mr. Chairman, I yield 1 minute to the gentleman from
Colorado if the gentleman will yield.
Mr. SKAGGS. I yield to the gentleman from Florida.
Mr. GOSS. Mr. Chairman, I believe that the gentleman is exactly on
the point that if it does no damage then there is no reason to keep it
hidden. That is a very valid point. But it is a
[[Page H4975]]
point that applies to several other pieces of information, which is
exactly why the committee has provided at the gentleman's request,
which I totally agree with, conceded to, applauded in committee, that
we provide for a study on declassification.
Does the gentleman believe that this should be outside of the study
of the declassification that we have provided for, committed funds for
and I hope we will have the funds when we get through with this process
to proceed with the study.
Mr. SKAGGS. If I can reclaim enough time to respond, I believe, as
the gentleman knows, that funding is for looking at past classified
information, things that have been sitting in the archives that need
additional staffing in order to be able to be reviewed for
declassification purposes. That is the real thrust of the funding that
we put in the bill for declassification.
{time} 1800
Mr. GOSS. Again, if the gentleman will continue to yield, I believe
that the question of declassification includes the question of
classification, because I think there is great abuse there, as the
gentleman has heard me say. I believe this is comprehensive and should
be treated as such.
Mr. CONYERS. Mr. Chairman, I am pleased to yield 2 minutes to the
gentleman from Massachusetts [Mr. John Tierney].
Mr. TIERNEY. Mr. Chairman, I appreciate the efforts of my colleague,
the gentleman from Michigan [Mr. Conyers], and I voice my support for
this amendment.
Let me just say that I do not think any of us are not mindful of the
comments that are made by our colleagues on the other side of this
issue, but the fact of the matter is that the American public are the
people that have a burning need to know at least what the aggregate
number is in this situation.
The time has come and it is long overdue for us to be able to have a
debate with real numbers down here about real issues. We are in the
midst of a debate right now in this country and in this House about the
amount of money that we are going to be spending on programs, and in
fact, with spending constraints on a number of programs, we are told
the money just is not there.
The budget these days is a zero sum game. The fact of the matter is
that if this is the case, we should have a disclosure so the American
public can see what proportion of our budget we are spending on so-
called intelligence matters. It ought to be known how many millions or
billions of dollars in relation to the rest of our budget is being
spent in this area at a time when we have schools that are in need of
repair, when we have cities and communities that are in need of
development, when we have infrastructure needs that are going unmet,
roads, bridges, and airports left unbuilt, the restraint of growth and
missing opportunities for job creation, when we have a debate over
insuring half of our children and not insuring the other half, and when
we continue to fail to debate the idea of having insurance available
for all Americans.
The Constitution requires that we have a statement and account of
receipts and expenditures for all the money. I think it is an absolute
disgrace that we hide here behind secrecy and say that we cannot even
tell the American public what the aggregate number is on so-called
intelligence matters.
In fact, my colleague from across the aisle indicated that the
President may well have authority to release these numbers. In fact, I
would agree with the gentleman that he does; that in 1996 he said he
favored doing just that. Now we see him waiting for us to move, and
they are over there with others saying we are going to wait for him to
move.
The American public wants somebody to move off the dime and tell us
what those numbers are. He ought to do it, and if he is not going to do
it we ought to do it, because simply there is no reason in the world to
say that security is involved.
Mr. Chairman, we need to move on this matter. The public has a
burning need to know.
Mr. CONYERS. Mr. Chairman, I yield myself 15 seconds.
Mr. Chairman, the argument that the President can do it and has not
done it but he approves of it is not a reason for us not to go ahead
and do it. If the gentleman does not object if the President
declassifies, then why do not we do it? We were only 30 votes away last
year from doing it.
Mr. Chairman, I yield 2 minutes to the gentlewoman from California,
Mrs. Ellen Tauscher.
Mrs. TAUSCHER. Mr. Chairman, I thank the gentleman from Michigan for
yielding time to me.
Mr. Chairman, I rise in strong support of the Conyers amendment. In
this post-cold-war era it is as important as ever that our Nation
maintain an efficient, effective, and trustworthy intelligence
apparatus. With national and economic security threats around the
world, we must collect accurate information about the activities of
countries and organizations that jeopardize our stability.
At the same time, at the end of the cold war we are now provided with
the opportunity to be more forthcoming about the money and the
resources we spend on intelligence gathering. The Director of the
Central Intelligence Agency has already taken steps to make more public
the activities of our intelligence agencies. The fact that the general
level of intelligence spending is a poorly kept secret only strengthens
the argument that it should be publicly disclosed.
As we attempt to balance the Federal budget, we are forced to make
decisions about spending priorities. It is important that the American
people know how much of their money proportionally is being spent to
support the intelligence community, just as they need to know about how
much money is spent on Medicare, transportation, and the arts.
I intend to vote for the Intelligence Authorization Act for 1998. I
believe it properly funds the important intelligence-related activities
of the United States. But I also believe that the American public
deserves to know the aggregate amount we are authorizing for these
activities. The Conyers amendment is a commonsense proposal that places
no threat to our national security. I encourage my colleagues to
support this amendment.
Mr. GOSS. Mr. Chairman, I yield such time as he may consume to my
colleague, the gentleman from Florida [Mr. McCollum].
Mr. McCOLLUM. Mr. Chairman, I thank the gentleman for yielding time
to me.
Mr. Chairman, I oppose the Conyers amendment, which is intended to
force the disclosure of the aggregate total of the intelligence
community's budget. I think primarily I oppose it for basic reasons of
common sense, that it does not make any sense to disclose this number
and let people who would be our enemies know what it is.
But as Chairman Goss has noted, there are several reasons to oppose
it. For example, one could argue that disclosure of the aggregate
number is the first step on a slippery slope toward total disclosure of
very highly sensitive security information. Chairman Goss has also made
a very persuasive argument that the President already possesses the
necessary legal authority, we have heard that discussed, to
unilaterally disclose this information without seeking any approval of
Congress.
But I would like to particularly address the assertion by some that
disclosure is required by the statement and account clause of the
Constitution; that is, article I, section 9, clause 7.
Professor Robert F. Turner of the University of Virginia School of
Law testified before the Permanent Select Committee on Intelligence on
the issue of, and this is his quote, ``Secret funding and the
`statement and account' clause'' in February 1994.
Professor Turner made a number of legal and historical observations
on the statement and account clause which are quite pertinent to
today's debate. He said, ``The Founding Fathers did not view `secrecy'
as being incompatible with democratic government. One of the first
measures adopted by the Constitutional Convention of 1787 was a secrecy
rule--without which James Madison said there would have been no
Constitution.
``Perhaps the first `covert action' in which the United States was
involved was a 1776 decision by France to secretly transfer 200,000
pounds worth of
[[Page H4976]]
arms and ammunitions to the colonies for use in their struggle against
King George. The offer was reported by secret messenger to Benjamin
Franklin, chairman of the Committee of Secret Correspondence of the
Continental Congress, and Robert Morris, the only members of the 5-man
committee then in town. Given the sensitivity of the matter, they
concluded--and here I quote--that `it is our indispensable duty to keep
it secret even from Congress.'
``They set forth several reasons for this decision, including this
one--and again I quote--`We find by fatal experience that Congress
consists of too many members to keep secrets.'
``It should not come as a surprise to learn that the first Congress
in 1790 appropriated a substantial contingent account for the President
to use in making foreign affairs and intelligence expenditures, and
that Congress expressly exempted the President from any requirement to
inform either Congress or the public how those funds were expended.
This was the start of a long tradition of 'secret' expenditures.''
I believe that Professor Turner has demonstrated in his work that the
Founding Fathers did endorse the use of certain secret funds to support
the new Nation's intelligence and foreign policy activities. I think
Benjamin Franklin would agree that the disclosure of the aggregate
funding amount for the intelligence community would indeed be penny-
wise and pound-foolish.
I am going to ask at the appropriate time, though I realize it is not
now since we are in the time for the amendments, to put Professor
Turner's prepared statement on secret funding into the Record and when
that time comes in the full House I will do so.
I again urge the defeat of the Conyers amendment. I ask that the
Members of this body vote down the Conyers amendment. It is a dangerous
precedent. We should not adopt it. We do have times and places for
secrecy, and the intelligence community is one of those places where it
is absolutely imperative.
Mr. CONYERS. Mr. Chairman, I yield 2 minutes to the distinguished
gentlewoman from California [Ms. Pelosi].
(Ms. PELOSI asked and was given permission to revise and extend her
remarks.)
Ms. PELOSI. Mr. Chairman, I thank the gentleman for yielding time to
me.
As a member of the Committee on Intelligence, I rise in support of
the Conyers amendment. This amendment at heart is about accountability
and the public's right to know. The amendment supports the underlying
belief that the government of this country is and should be accountable
to the people of the country.
In today's world there is no rational reason why the American public
should be denied information about how much the United States
Government is spending on intelligence activities. President Clinton
recognized this fact when in April of 1996 he said that the bottom line
for intelligence spending should be published. John Deutch, then
Director of the Central Intelligence Agency, said that same month,
``Disclosure of the annual amount appropriated for intelligence
purposes will inform the public and will not in itself harm
intelligence activities.''
The continued classification of the total amount spent annually on
intelligence activity is not only unnecessary, but it is also
ridiculous. U.S. intelligence spending is considered by many to be one
of Washington's worst-kept secrets. Estimates of intelligence spending
appear with some regularity in the press. By continuing to refuse to
release the amount publicly, Congress is only serving to fuel
suspicions that the government is hiding something.
Those who support openness and accountability in government should
support this effort to make our government accountable in one of the
last bastions of secrecy, a secrecy that in today's world is
unwarranted. In a democratic society citizens have a right to know what
their tax dollars support.
In fact, inside the Beltway an estimate of intelligence spending is
widely reported, but ordinary citizens are oddly denied this
information. I urge my colleagues to support openness and to support
the Conyers amendment.
Mr. CONYERS. Mr. Chairman, I yield myself 45 seconds.
Mr. Chairman, this just in: The reason maybe Chairman Goss' people do
not ever ask him about it, about this financing of the intelligence, is
that they do not know that we are not being told. They may not even
know that he is being told.
For my dear friend, the gentleman from Florida [Mr. McCollum], again,
with whom we have had great discussions about American history, in 1770
and 1773, in those 2 years the intelligence budgets were in the
aggregate disclosed. If Members need a more recent time, check in 1994,
when the Subcommittee on National Security of the Committee on
Appropriations inadvertently released the whole blooming thing and
nothing happened.
Mr. Chairman, I yield 1 minute to the gentleman from Washington [Mr.
Adam Smith].
Mr. ADAM SMITH of Washington. Mr. Chairman, I, too, rise in support
of the Conyers amendment to disclose the aggregate budget of the
Committee on Intelligence to the full public. I think the important
thing to remember is the presumption should always be in favor of
disclosure.
As I listened to the arguments against, I do not hear anything to
rebut that presumption. I think the American public wants to know as
much as possible about what we do back here. Part of the reason why
this institution has the confidence problem it has with this country is
they figure we are keeping stuff from them, that we do not trust them
to know what is going on back here, and they feel left out of the
process. There should be a strong presumption in letting them into as
much of the process as is humanly possible.
If there is some special reason here why that cannot be done, fine.
We can explain it and keep it secret. But no special reason has been
offered during the course of this debate not to release the aggregate
figure that we spend on intelligence in this country.
There have been some camel's nose under the tent arguments about how
in the future we might authorize the release of something that would
cause a problem, but that is not good enough. That does not rebut the
presumption that this body should have to disclose whatever possible to
the public. I urge support of the amendment.
Mr. CONYERS. Mr. Chairman, I am privileged to yield 30 seconds to the
gentleman from California [Mr. Sherman].
Mr. SHERMAN. Mr. Chairman, we have an extraordinary event in the
world. The entire world has virtually acquiesced to having one
superpower. That has never happened in history. It has occurred because
the world knows that for the most part our decisions are based on
values and on respect for democracy.
Democracy begins at home. A revelation of the amount that we are
spending on security is one of the building blocks of the consensus
that our power relies upon. Otherwise, it will only be a matter of
time, if we do not respect our values, before the rest of the world
questions whether there should be one superpower.
Mr. CONYERS. Mr. Chairman, I yield such time as he may consume to the
gentleman from California [Mr. Farr].
(Mr. FARR of California asked and was given permission to revise and
extend his remarks.)
Mr. FARR of California. Mr. Chairman, I rise in support of the
amendment.
Mr. Chairman, I rise in support of the Conyers amendment to
declassify the size of the Intelligence Budget
There is simply no reason to keep the size of the Intelligence budget
hidden.
Former CIA Directors, including John Deutch and Bob Gates, say that
it would not harm National Security.
This amendment would not reveal what we spend on individual programs,
only on intelligence as a whole.
Other countries, like Israel and Britain, already disclose their
spending on intelligence.
It simply serves no purpose to keep the size of the intelligence
budget a secret.
At a time when the rest of the Federal Budget is being cut, slashed,
and squeezed, the American people ought to know how much of their tax
dollars are going to intelligence programs.
By maintaining needless secrecy, we do nothing for American
intelligence while keeping secrets from the American people.
Let's bring some sunshine to Government and some honesty to the
American people support the Conyers amendment.
[[Page H4977]]
Mr. Chairman, It is unnecessary after the end of the cold war to keep
the budget secret. Keeping general information like the budget
classified undermines the credibility of other information which really
needs to be secret.
If we really are serious about balancing the budget, how can we sign
a secret, multi-billion dollar blank check every year, with such a
minimal public discussion?
Since almost all intelligence spending is hidden in the defense
budget, the American people are not only kept in the dark about
intelligence spending, they are misled about the real amount of defense
spending through false line-items in the defense budget. We need budget
integrity.
Porter Goss, the current Chairman of the House Intelligence Committee
was a member of the Brown-Aspin (later the Brown-Rudman) Commission
that recommended disclosure of the aggregate figure of the intelligence
budget. Why should his position change?
The intelligence budget is the worst-kept secret in Washington
anyway. Each year it is disclosed dozens of times in the press with no
harm done to ``national security.''
Keeping this budget officially secret while watching it discussed
openly in the press adds to a cynicism that the American public has
about its government. No-one wants to foster a pessimism that
discourages participation in our democracy.
``The President is persuaded that disclosure of the annual total
budget for intelligence activities should be made public and that this
can be done without any harm to intelligence activities.''
With an open intelligence budget, the Director of Central
Intelligence and others would be able to better justify the funding it
receives from Congress. (A counter-argument might be, for example, that
the CIA will not be able to publicly defend its budget because may of
its successes are secret.)
Only a handful of Members of Congress actually go look at the
intelligence budget (as they are permitted to do). Declassifying the
new budget request and the current fiscal year's appropriated amount
for purposes of comparison would contribute to a more informed debate.
Releasing the intelligence budget would help make it conform to the
ideals for the framers of the Constitution. The Constitution states:
``No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.''
In 1994, Defense Appropriations Subcommittee hearings disclosed
almost a complete breakdown of the categories of intelligence spending,
which added up to $28 billion. Three years later, we're still waiting
to hear how this disclosure harmed ``national security.
Similarly, the Brown-Aspin Commission Report recommended disclosure
only of the aggregate intelligence budget and no further detail, then
inadvertently specified the CIA's budget at $3.1 billion in a graph.
(See attached article.)
The Washington Post reported that the National Reconnaissance Office,
the intelligence agency which manages spy satellites reported a surplus
of $3.8 billion that has accumulated over the years from unspent money
and bad accounting practices! This is partly the result of a lack of
open discussion about intelligence spending. (See attached article.)
While HUD, the Department of Commerce and [insert your favorite
agency] are fighting for their life, isn't it only fair that the
American people at least know how many of their tax dollars are going
to intelligence?.
Taxpayers for Common Sense writes: ``At a time when all federal
programs are under increased scrutiny and must meticulously account for
their spending, it is only fair that the overall level of spending on
intelligence be available of the taxpayers. Taxpayers should know the
amount spend on intelligence in order to make informed choices
regarding the allocation of government funds.''
Other democracies such as Israel, Britain, Australia and Canada
disclose their intelligence budgets. (FYI: Israel spends less than a
billion shekels on the Mossad and the Shin Bet combined.)
Larry Combest, the former Chairman of the Hose Intelligence Committee
and last year's lone opponent of budget disclosure, was the vice-chair
(with Senator Moynihan) of the Commission on Protecting and Reducing
Government Secrecy. While Commission's report, released in March of
this year, did not deal directly with the intelligence budget, it
noted:
``Secrecy exists to protect national security, not government
officials and agencies'' (page xxiii).
``[E]xpansion of the Government's national security bureaucracy since
the end of World War II and the closed environment in which it has
operated have outpaced attempts by Congress and the public to oversee
that bureaucracy's activities'' (page 49).
There are twelve ranking members who are so-sponsors of H.R. 753,
ranging the ideological spectrum, including: Representatives John
Conyers, Norm Dicks, John Spratt, Lee Hamilton, George Brown, Ron
Dellums, Lane Evans, Sam Gejdenson, Henry Gonzalez, George Miller, Jim
Oberstar, and Charles Rangel.
{time} 1815
Mr. CONYERS. Mr. Chairman, I yield myself the balance of my time.
May I point out that the arguments, the more we go over them each
year, the more it becomes clear that there is very little objection to
revealing the aggregate budget for the 14 intelligence agencies in our
system. It is a practice that is followed by at least four of our
allies that I know with no harm. It is like trying to get us to agree
to a secret that is already open.
Mr. DICKS. Mr. Chairman, will the gentleman yield?
Mr. CONYERS. I yield to the gentleman from Washington.
Mr. DICKS. Mr. Chairman, I want to commend the gentleman for his
initiative. To my friend who says this is a slippery slope, we can say
what the number is and say, out of that we fund the CIA, the DIA, the
NSA, NIMA, right down the line. We do not have to tell them what that
second amount is. I think it would do a lot to help the American people
understand how many different entities are funded by this budget and
how much of it is in the Department of Defense. We have heard all kinds
of misstatements here today on the floor. I think we look kind of
foolish. Numbers are in the New York Times. They are not that far off.
They are wrong but they are not that far off. In my judgment, it is
time for us to let the American people know. I think the gentleman
deserves to be commended for his initiative.
Mr. CONYERS. Mr. Chairman, I thank the gentleman.
The fact of the matter is that for us to say to the American people
that they really do not need to know this or that nobody is asking me
about it so we will keep it from them is the shallowest kind of
presentation to make. We need to know the aggregate amount. I am
confident for one that this body will not proceed down a slippery
slope. I do not think this body, no matter what we do on this measure
today, will further want to break this thing down.
I am not certain that I would support any further disclosure than the
revelation of the aggregate amount.
Mr. DICKS. Mr. Chairman, if the gentleman will continue to yield, I
certainly agree with the gentleman. I would oppose going to the
individual amounts, but I think the aggregate will help us with the
American people.
Mr. GOSS. Mr. Chairman, I yield myself the balance of my time.
Mr. McCOLLUM. Mr. Chairman, will the gentleman yield?
Mr. GOSS. I yield to the gentleman from Florida.
Mr. McCOLLUM. Mr. Chairman, I just wanted to make a point that in
the time for general leave, I am going to ask to have the Turner
statement with regard to constitutionality inserted right after my
remarks during this debate. I know this is not the formal place, but we
seem to need to put a place marker in there. I thank the gentleman for
yielding to me.
Mr. Chairman, I include the following for the Record:
Secret Funding and the ``Statement and Account'' Clause: Constitutional
and Policy Implications of Public Disclosure of an Aggregate Budget for
Intelligence and Intelligence-Related Activities
(Prepared statement of Prof. Robert F. Turner)
Introduction
Mr. Chairman, it is a pleasure to be here this afternoon to
provide testimony on the constitutional implications of
authorizing and appropriating funds for intelligence
operations without making the aggregate amount of those funds
public. It is a particular pleasure to see you again, Mr.
Chairman, whom I have not seen since our work together nearly
a decade ago in getting the U.S. Institute of Peace off the
ground. I am also pleased to join my old friend Dr. Lou
Fisher--who has done landmark scholarship in these areas--and
to have a chance to listen to Dr. George Carver, whose work
has influenced my own thinking for more than two decades.
I understand that the Committee is considering a proposal
that has been around in one form or other for many years to
make public the aggregate sum of money appropriated for
[[Page H4978]]
the various agencies of the Intelligence Community--money
which has for nearly half a century been concealed, if public
accounts are to be believed,\1\ largely within the budget of
the Department of Defense.
---------------------------------------------------------------------------
\1\ Footnotes at the end of article.
---------------------------------------------------------------------------
This practice was authorized by Public Law 81-110, the
Central Intelligence Agency Act of 1949, section 5 of which
authorizes the Agency to ``receive from other Government
agencies such sums as may be approved by the Bureau of the
Budget [now OMB]'' for the performance of authorized
functions, and also authorizes ``any other Government agency
. . . to transfer to . . . the Agency such sums without
regard to any provisions of law limiting or prohibiting
transfers between appropriations.''\2\ It is perhaps worth
noting that this process was agreed to in 1949 by voice vote
in the Senate and by a vote of 348 to 4 in the House--with
only a single Member of either House speaking in
opposition.\3\
Members of this Committee will know the current mechanics
of this process far better than I do, but it is my
understanding that the precise amounts authorized and
appropriated for the Intelligence Community are normally
known only to the two intelligence committees and select
members of the appropriations committees. I am working from
the understanding that all fund provided to the Intelligence
Community from the federal treasury have, in fact, been
appropriated by law and that the process itself is not
contrary to any statute. Thus, the issue I am prepared to
address is not whether Congress has agreed to the current
funding process; but rather, whether that congressionally
established process complies with the requirements of the
Constitution.
I do not have a sense that the large majority of Americans
are upset at the realization that our government keeps many
facts concerning intelligence agencies and their work
secret--indeed, I suspect a scientific poll would reveal that
most Americans would share my own personal preference that
such matters ought not to be made public if there is any
reasonable likelihood their disclosure will compromise
sensitive sources or methods or in any other manner undermine
our security or benefit our nation's enemies.\4\
This expectation is predicated upon the assumption that the
current practice is consistent with the Constitution; for, if
the question were worded ``should the Constitution be
obeyed,'' the answer would presumably also be a strong
affirmative. So it seems to me that, in deciding whether to
change the status quo, the Committee has a two-stage process
to undertake:
First, you need to ascertain whether the Constitution
requires the publication of the aggregate annual budget for
intelligence and intelligence-related activities (or perhaps
even a more detailed accounting of those appropriations);
and, if the answer is yes, you need to make those figures
public.
If the answer to the constitutional question is no, it
would seem wise to undertake a thorough policy review to
decide whether such figures should nevertheless be made
public--and, if so under what constraints or guidelines.
While I understand that my role here this afternoon is to
help you answer the first question, with your permission I
will also comment briefly upon the broader policy issues.
The Constitutional Issues
Article 1, Section 9, clause 7 of the Constitution
provides:
No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law; and a regular
Statement and Account of the Receipts and Expenditures of all
public Money shall be published from time to time.
Many respected individuals and groups have concluded on the
basis of this language that it is unconstitutional for the
Congress not to publish at least the aggregate sum of
appropriations for the Intelligence Community.\5\ I shall
address that issue, but with your permission I would propose
to first place the issue in the context of the Founding
Fathers' attitude toward secrecy in the areas of foreign
intercourse and intelligence. I believe there is a great deal
of misunderstanding on this point that may confuse this
important debate.
Secrecy, Democracy, and the Early American Experience
There seems to be a common assumption that the Founding
Fathers viewed secrecy in government as a terrible evil, a
practice quite incompatible with democratic theory. While it
is true that they believed that an informed public was
essential to democratic government,\6\ they were practical
men who recognized that intelligence and national security
matters often had to be kept secret--not only from the
American people, but even from their elected representatives
in Congress.
The Committee of Secret Correspondence
The obvious inability of legislative bodies to manage the
details of foreign intercourse led the Continental Congress
to establish a ``Committee of Secret Correspondence'' on 29
November 1775.\7\ Two weeks later, the Committee dispatched
Thomas Story as a secret messenger to France, Holland, and
England, with instructions to make contact with a network of
unofficial ``secret agents'' serving the United States in
foreign capitals--people like Silas Deane in France and
Arthur Lee in England.
After meeting with Lee, Story returned to America and gave
this report to the Committee, as recorded in a memorandum
dated 1 October 1776 found among the Committee's official
papers:
``On my leaving London, Arthur Lee, Esq., requested me to
inform the Committee of [Secret] Correspondence that he had
had several conferences with the French Ambassador, who had
communicated the same to the French court; that in
consequence thereof the Duke de Vergennes had sent a
gentleman to Mr. Lee, who informed him that the French Court
could not think of entering into a war with England, but that
they would assist America by sending from Holland this fall
two hundred thousand pounds sterling worth of arms and
ammunition to St. Eustatius, Martinico, or Cape Francois.
That application was to be made to the Governours or
Commandants of those places by inquiring for Monsieur
Hortalez, and that on persons properly authorized applying,
the above articles would be delivered to them.'' \8\
This may arguably have been the very first ``covert
operation'' to which the United States was a party, and the
secret offer of K200,000 worth of arms was welcome news in
America. But it was also recognized as highly sensitive news,
and for that reason Benjamin Franklin and the members of the
small committee he chaired agreed without dissent that it
could not be shared with their colleagues in the Congress.
Their memorandum explains:
``The above intelligence was communicated to the
subscribers [Franklin and Robert Morris], being the only two
members of the Committee of Secret Correspondence now in the
city, and our considering the nature and importance of it, we
agree in opinion that it is our indispensable duty to keep it
secret even from Congress, for the following reasons:
``First, Should it get to the ears of our enemies at New-
York, they would undoubtedly take measures to intercept the
supplies, and thereby deprive us not only of those succours,
but of others expected by the same route.
``Second, as the Court of France have taken measures to
negotiate this loan of succour in the most cautious and
secret manner, should we divulge it immediately, we may not
only lose the present benefit, but also render that Court
cautious of any further connection with such unguarded
people, and prevent their granting other loans and assistance
that we stand in need of, and have directed Mr. Deane to ask
of them. For it appears from our intelligence they are not
disposed to enter into an immediate war with Britain,
although disposed to support us in our contest with them. We
therefore think it our duty to cultivate their favourable
disposition towards us, draw from them all the support we
can, and in the end their private aid must assist to
establish peace, or inevitably draw them in as parties to the
war.
``Third, We find by fatal experience that Congress consists
of too many members to keep secrets. . . . [Emphasis
added.]'' \9\
The memorandum contained the written endorsements of
Richard Henry Lee and William Hooper, to whom it had been
shown some days later, with the notation that Lee
``concur[red] heartily'' and Hooper ``sincerely approve[d]''
of its contents.\10\
john jay and federalist no. 64
One of the criticisms of American government under the
Articles of Confederation was that all functions of
government were entrusted to the Congress, which tended to
micromanage military and diplomatic affairs and could not
keep secrets. Robert R. Livingston agreed to serve as
``Secretary of the United States of America for the
Department of Foreign Affairs'' in February 1782, but by the
end of the year he had submitted his resignation in
frustration. Nearly two years passed before John Jay was
chosen his successor as the ``agent'' of Congress in
diplomatic intercourse; and he, too, was quickly frustrated
by such things as the demand of Congress to receive every
proposal submitted by the Spanish Charge during treaty
negotiations.\11\
Jay was particularly frustrated by the demands by
Congress--which, in the absence of any ``executive'' organ of
government, had exclusive control over war, treaties, and
other aspects of the nation's foreign intercourse--for access
to confidential information and diplomatic letter. Professor
Henry Wriston, in his classic 1929 study, Executive Agents
in American Foreign Relations, explains:
It is interesting, in connection with the submission of
Lafayette's letters to Congress, to observe that Jay regarded
this as a serious limitation upon the value of the
correspondence. Congress never could keep any matter strictly
confidential; someone always babbled. ``The circumstances
must undoubtedly be of a great restraint on those public and
private characters from whom you would otherwise obtain
useful hints and information. I for my part have long
experienced the inconvenience of it, and in some instances
very sensibly.'' [Emphasis added.] \12\
These frustrations were widely shared, and Jay went on to
play a key role both in explaining the Constitution as a co-
author of the Federalist Papers and in interpreting it as the
nation's first Chief Justice. He took on the issues of
secrecy and intelligence squarely in Federalist essay number
64, explaining the benefits of entrusting matters requiring
secrecy to the Executive while requiring the approval of two-
thirds of the Senate before the President could ratify a
completed treaty:
[[Page H4979]]
There are cases where the most useful intelligence may be
obtained, if the persons possessing it can be relieved from
apprehensions of discovery. Those apprehensions will operate
on those persons whether they are actuated by mercenary or
friendly motives, and there doubtless are many of both
descriptions, who would rely on the secrecy of the president,
but who would not confide in that of the senate, and still
less in that of a large popular assembly. The convention have
done well therefore in so disposing of the power of making
treaties, that although the president must in forming them
act by the advice and consent of the senate, yet he will be
able to manage the business of intelligence in such manner as
prudence may suggest.\13\
Jay added, with an allusion to the shortcomings of the
Articles of Confederation: ``So often and so essentially have
we heretofore suffered from the want of secrecy and dispatch,
that the Constitution would have been inexcusably defective
if no attention had been paid to those objects.'' \14\
washington, the senate, and congressional leaks
Further contemporary insight into the Founding Fathers'
perception that Congress could not keep secrets is found in
an informal note made by our first Secretary of State, Thomas
Jefferson. Beginning during his service in this capacity,
Jefferson made various ``notes''--what he called ``passing
transactions''--to assist his memory. These he later combined
into three volumes which we today know as The Anas. The
following entry is instructive:
April 9th, 1792. The President had wished to redeem our
captives at Algiers, and to make peace with them on paying an
annual tribute. The Senate were willing to approve this, but
unwilling to have the lower House applied to previously to
furnish the money; they wished the President to take the
money from the treasury, or open a loan for it. . . . They
said . . . that if the particular sum was voted by the
Representatives, it would not be a secret. The President had
no confidence in the secresy of the Senate, and did not
choose to take money from the treasury or to borrow. But he
agreed he would enter into provisional treaties with the
Algerines, not to be binding on us till ratified here.
[Emphasis added.] \15\
Mr. Chairman, this is an important, if largely forgotten,
part of our history. However, in the interest of time, I will
mention but one further example of the Founding Fathers'
recognition of the value of secrecy: and what example could
be more fitting than the Constitutional Convention itself.
the federal convention of 1787
On 29 May 1787, the fourth day of deliberation,\16\ the
Constitutional Convention adopted a series of rules as part
of the Standing Orders of the House. Rules three through five
provided:
That no copy be taken of any entry on the journal during
the sitting of the House without the leave of the House.
That members only be permitted to inspect the journal.
That nothing spoken in the House be printed, or otherwise
published, or communicated without leave.\17\
The great constitutional historian Clinton Rossiter has
described this ``so-called secrecy rule'' as ``the most
critical decision of a procedural nature the Convention was
ever to make,'' and notes that ``in later years, Madison
insisted that `no Constitution would ever have been adopted
by the convention if the debates had been public.' '' \18\
Indeed, at his insistence, Madison's own important Notes on
the convention were not published until 1840, four years
after his death and more than half a century after the
convention had ended.\19\
Because the debates of the convention were held in secret,
and Madison's Notes were thus not available to the people
when they ratified the Constitution, such influential
contemporary records as the Federalist Papers and state
ratification convention debates probably deserve greater
weight in interpreting the document as it was understood by
the sovereign American people when it was ratified.
Nevertheless, Madison's Notes do provide important details
about the give-and-take that produced the constitutional
text, and they are certainly worthy of study. The entire
debate on this issue occupies approximately one page of the
hundreds of pages devoted by Madison to the convention
proceedings. It occurred only three days before the end of
the debate, seemingly as an afterthought, on Friday, 14
September 1787:
Col. [George] Mason moved a clause requiring ``that an
Account of the public expenditures should be annually
published'' Mr. Gerry 2<SUP>ded</SUP> the motion.
Mr. Gov<SUP>r</SUP>. Morris urged that this w<SUP>d</SUP>.
be impossible in many cases.
Mr. King remarked, that the term expenditures went to every
minute shilling. This would be impracticable.
Cong<SUP>s</SUP>. might indeed make a monthly publication,
but it would be in such general statements as wou<SUP>d</SUP>
afford no satisfactory information.
Mr. Madison proposed to strike out ``annually'' from the
motion & insert ``from time to time,'' which would enjoin the
duty of frequent publications and leave enough to the
discretion of the Legislature. Require too much and the
difficulty will beget a habit of doing nothing. The articles
of Confederation require halfyearly publications on this
subject. A punctual compliance being often impossible, the
practice has ceased altogether.
Mr. Wilson 2<SUP>ded</SUP> & supported the motion. Many
operations of finance cannot be properly published at certain
times.
Mr. Pinkney was in favor of the motion.
Mr. Fitzimmons. It is absolutely impossible to publish
expenditures in the full extent of the term.
Mr. Sherman thought ``from time to time'' the best rule to
be given.
``Annual'' was struck out--& those words--inserted nem:
con:
The motion of Col: Mason so amended was then agreed to nem:
con: and added after--``appropriations by law'' as follows--
``And a regular statement and account of the receipts &
expenditures of all public money shall be published from time
to time.'' \20\
It is perhaps worth noting that the issue of ``secrecy''
had arisen earlier that same day with respect to publishing
the journal of each House of Congress,\21\ and the statements
by Gouverneur Morris (annual publication would be
``impossible in many cases''), Madison (on the need for
legislative discretion), James Wilson (``Many operations of
finance cannot be properly published at certain times'')--and
others who supported Madison's amendment--may have been made
with this concern in mind.
That the need to protect certain secret expenditures was,
in fact, a primary underlying rationale for the decision to
give Congress discretion as to what expenditures could be
made public, and when, becomes clearer from a reading of the
debates in the state ratification conventions--especially in
the Virginia Convention, where both Mason and Madison were
present to revisit the original debate. Colonel Mason took a
second bite at the apple during the Virginia Convention,
arguing on 17 June 1788 that ``the loose expression of
`publication from time to time,' was applicable to any time.
It was equally applicable to monthly and septennial
periods.'' \22\ He then explained:
The reason urged in favor of this ambiguous expression,
was, that there might be some mattes which might require
secrecy.
In matters relative to military operations, and foreign
negotiations, secrecy was necessary sometimes. But he did not
conceive that the receipts and expenditures of the public
money ought ever to be concealed. The people, he affirmed,
had a right to know the expenditures of their money. But that
this expression was so loose, it might be concealed forever
from them, and might afford opportunities of misapplying the
public money, and sheltering those who did it. He concluded
it to be as exceptionable as any clause in so few words could
be. [Emphasis added.] \23\
As had been the case in Philadelphia, Mason lost this
debate. But, by raising the issue again, this time in public
debate, he made a useful contribution to our understanding of
the ``original intent'' behind this clause. We now know that
the reason Congress was given this discretion was to protect
``matters which might require secrecy,'' that Mason
acknowledged that secrecy was sometimes necessary in military
and diplomatic matters, and that--even after he warned that
this ``ambiguous'' language might allow Congress to keep some
secret expenditures ``concealed forever''--Mason's colleagues
at the Virginia convention were not persuaded to strengthen
the clause and deny Congress this discretion.
the early practice of confidential expenditures
Of particular value in trying to understand the original
constitutional scheme are the acts of the First Congress,
elected in early 1789. Two-thirds of its twenty-two senators
and fifty-nine representatives had either been members of the
Philadelphia Convention of 1787 or of state ratifying
conventions, and only seven of them had opposed ratification.
Therefore, their actions are entitled to special weight. As
Chief Justice Marshall observed in 1821, in trying to
determine the intent of the Founding Fathers ``[g]reat weight
has always been attached, and very rightly attached, to
contemporaneous exposition.'' \24\
It is therefore noteworthy that the First Congress
appropriated a ``contingent fund'' of $40,000--a considerable
sum at the time \25\--for the President to use for special
diplomatic agents and other sensitive foreign affairs needs.
The statute expressly provided:
``The President shall account specifically for all such
expenditures of the said money as in his judgment may be made
public, and also for the amount of such expenditures as he
may think it advisable not to specify.'' \26\
Note the language here--the President was not required to
account to Congress ``under injunction of secrecy'' for
sensitive expenditures, he was required simply to inform
Congress of the sums expended so that the fund could be
replenished as necessary. Congress was not to be told the
details, as the Founding Fathers had learned first hand the
harm that could be done by ``leaks.''
It is perhaps worth noting that the contingent account was
not only replenished, within three years it was increased to
the level of one million dollars--much of it reportedly was
used for such expenditures as bribing foreign officials and
ransoming hostages.\27\
In this era of Boland Amendments and massive appropriations
bills packed with ``conditions'' it may be difficult to
realize that the Founding Fathers envisioned something quite
different; but it is important, from time to time, to remind
ourselves of the original plan. In an 1804 letter to
Secretary of the Treasury Albert Gallatin, President Thomas
Jefferson summarized the practice during the nation's first
fifteen years:
[[Page H4980]]
``The Constitution has made the Executive the organ for
managing our intercourse with foreign nations. . . . The
Executive being thus charged with the foreign intercourse, no
law has undertaken to prescribe its specific duties. . . .
[I]t has been the uniform opinion and practice that the whole
foreign fund was placed by the Legislature on the footing of
a contingent fund, in which they undertake no specifications,
but leave the whole to the discretion of the president.''
\28\
When Jefferson used his contingent account to fund a
paramilitary army of Greek and Arab mercenaries to invade
Tripoli and pressure its Bey to surrender American hostages,
no one seems to have complained that Congress was not
informed in advance of the operation.\29\ Jefferson's
successor, James Madison--a man of some familiarity with the
meaning of the Constitution and its ``Statement and Account''
clause--found that he needed additional funds to underwrite a
covert action to gain control over disputed territory between
Georgia and Spanish Florida in 1811, so he asked Congress to
enact a ``secret appropriation'' of $100,000 for that
purpose. The need for secrecy having passed, the secret
appropriation was discretely made public years later, in
1818.\30\
The modern practice arguably dates back to 1941,\31\ but
official congressional sanction was provided by the Central
Intelligence Act of 1949.\32\ Over the years a variety of
efforts have been made to change the practice, without
success.\33\ The political forces behind the current effort
are considerable--but so much of the rhetoric is premised
upon the need to ``obey the Constitution'' that it is
difficult to gave the sentiment on policy grounds alone.
In reality, these constitutional concerns are ill founded.
The record behind Article 1, Section 9, clause 7 of the
Constitution--whether viewed on the basis of ``original
intent'' or with the gloss of historic practice--clearly
establishes that Congress is not required to publish either
an aggregate figure of the money it makes available to the
Intelligence Community or a more detailed accounting at this
time. All of these sums, I gather, have been taken from the
Treasury ``in consequence of appropriations made by law''--
and most apparently have been identified already in broad
terms to the public as appropriations for purposes of
national security or national defense.
James Mason, to be sure, objected to the argument that the
need for ``secrecy'' required that Congress be left with
discretion in this area; but in both the federal and state
conventions he made his case and failed to carry the day. The
First Congress appropriated a contingent fund for which the
President did not even have to disclose his expenditures to
Congress; and Madison himself--the ``father'' of our
Constitution and the author of the successful amendment to
the ``Statement and Account'' clause--sought and received a
``secret appropriation'' that was not revealed to the public
for many years.
the view from the federal judiciary
Any remaining doubts which might exist should be put to
rest by a review of the handling of this issue by federal
courts. The issue came before the Supreme Court in United
States v. Richardson,\34\ but the Court found it unnecessary
to reach the merits because the Complainant lacked standing.
However, in the course of his majority opinion, Chief Justice
Burger reasoned in a footnote:
``Although we need not reach or decide precisely what is
meant by `a regular Statement and Account,' it is clear that
Congress has plenary power to exact any reporting and
accounting it considers appropriate in the public interest. .
. . While the available evidence is neither qualitatively nor
quantitatively conclusive, historical analysis of the genesis
of cl. 7 suggests that it was intended to permit some degree
of secrecy of governmental operations. . . .
``Not controlling, but surely not unimportant, are nearly
two centuries of acceptance of a reading of cl. 7 as vesting
in Congress plenary power to spell out the details of
precisely when and with what specificity Executive agencies
must report the expenditures of appropriated funds and to
exempt certain secret activities from comprehensive public
reporting.'' [Emphasis added.] \35\
Even more significant is the District of Columbia Circuit
Court of Appeal's 1980 decision in Halperin v. Central
Intelligence Agency,\36\ a very useful case for which we are
indebted to Mr. Stern's predecessor at the ACLU, my litigious
friend Morton Halperin. Following the Supreme Court's holding
in Richardson, the D.C. Circuit affirmed the District Court's
summary judgment in favor of the CIA. But it went further,
addressing the case on the merits, and holding in the
alternative that ``Congress and the President have
discretion, not reviewable by the courts, to require secrecy
for expenditures of the type involved in this case.'' \37\
The Halperin court engaged in a detailed review of
Madison's Notes and the state convention debates, concluding
that: ``Madison's language strongly indicates that he
believed that the Statement and Account Clause, following his
amendment, would allow government authorities ample
discretion to withhold some expenditure items which
require secrecy.'' \38\ While noting George Mason's
argument that ``he did not conceive that the receipts and
expenditures of the public money ought ever to be
concealed,'' \39\ the court concluded:
``But the Statement and Account Clause, as adopted and
ratified, incorporates the view not of Mason, but rather of
his opponents, who desired discretionary secrecy for the
expenditures as well as the related operations. . . .
``Viewed as a whole, the debates in the Constitutional
Convention and the Virginia ratifying convention convey a
very strong impression that the Framers of the Statement and
Account Clause intended it to allow discretion to Congress
and the President to preserve secrecy for expenditures
related to military operations and foreign negotiations.
Opponents of the `from time to time' provision, it is clear,
spoke of precisely this effect from its enactment. We have no
record of any statements from supporters of the Statement and
Account Clause indicating an intent to require disclosure of
such expenditures.''\40\
Since the Supreme Court elected not to address the issue on
the merits in Richardson, the Halperin case remains the
authoritative judicial interpretation on this subject.
opinion of the attorney general
Finally, Mr. Chairman, although I have not seen it, I
understand that Attorney General Griffin Bell was asked by
President Carter to consider this issue in depth and to
prepare an opinion for the President. He concluding that the
current Intelligence Community funding practices are not in
conflict with the Constitution.\41\
issue of policy
Mr. Chairman, I believe that the text of the Constitution,
the clear intentions of the Founding Fathers, and more than
two centuries of consistent practice, support the conclusion
that the current practice of concealing appropriations for
intelligence activities in the budgets of other agencies is
constitutional. As I have indicated, that conclusion has the
support of the D.C. Circuit Court of Appeals, and, I am
informed, of the Office of the Attorney General. I believe
you may rest comfortably on this point, and the only reasons
for departing from traditional disclosure practice would be
of a policy nature. At this time I would like to turn briefly
to some of those considerations.
a presumption of disclosure
Perhaps first of all, in a free society there ought to be a
presumption in favor of openness and the diffusion of
knowledge and information. This may reflect my parochial
prejudices as a product of Mr. Jefferson's University, but I
am reminded both of his caution against trying to remain
``ignorant and free,'' \42\ and more directly his statement
that the University of Virginia would be ``based on the
illimitable freedom of the human mind,'' and would not be
``afraid to follow truth wherever it may lead, nor to
tolerate any error so long as reason is left free to combat
it.'' \43\
overcoming the presumption
Having said that, I would argue that the most compelling
arguments to overcome that presumption of openness are those
legitimately based upon the security of the nation. As John
Jay noted in Federalist No. 3, ``Among the many objects to
which a wise and free people find it necessary to direct
their attention, that of providing for their safety seems
to be the first.'' \44\ Similarly, the Supreme Court noted
in Haig v. Agee that ``it is `obvious and unarguable' that
no governmental interest is more compelling than the
security of the Nation.'' \45\
comity and deference to the president
In addition, I urge you to recognize that the management of
intelligence matters was recognized by the Founding Fathers
to be at the core of the President's responsibilities; and,
toward this end, I would urge you not to decide to disclose
these figures if the President asks that they be kept
confidential. To do otherwise would depart from two centuries
of precedent. I don't know the preferences of the current
Administration on this issue, but I urge you to give them the
weight that comity among the branches would warrant.
balancing the interests
Ultimately, if the President does not object, I would
suggest that you apply a balancing test in reaching your
decision. You are entertaining a motion to depart from a
practice dating back in some respects to the earliest days of
our country, and in others to the creation of the agencies
you are charged with overseeing. The proponents of change
ought to be expected to justify a departure from these well-
established practices--and their constitutional arguments are
unpersuasive.
Ask yourselves first, what real benefit to the American
people or our system of government will likely result from
disclosing the aggregate intelligence budget. How meaningful
will this one figure be to our citizens? Presumably the sums
are already disclosed under the broad ``National Defense''
budgetary category. Will any identifiable good be served by
publicly identifying a portion of that larger sum as being
earmarked for ``intelligence and intelligence-related
activities?'' Would the result of these efforts not be, to
borrow from the argument Rufus King made in objecting to a
mandatory annual statements, ``such general statements as
would afford no satisfactory information.'' \46\
an aggregate figure will not satisfy the critics
You can be certain that releasing a single, aggregate
figure will not satisfy those who are demanding meaningful
information
[[Page H4981]]
about the Intelligence Community. In 1974 a student note in
the New York University Journal of International Law and
Politics, for example, concluded that ``Not only may the
Constitution mandate the reporting of CIA expenditures to
Congress as a whole, but it may even require publication of
the CIA budget.'' \47\ Similarly, a 1975 note in the Yale Law
Journal argued that ``Even a lump-sum appropriation and
disclosure would prevent both Congress and the public from
fixing or analyzing internal priorities within the CIA; it
would also be impossible to determine if there has been
waste, corruption, or spending prohibited by statute or by
the Constitution.'' \48\ The observation would seem sound,
and once you start releasing details it will probably become
more difficult to draw any bright lines. Ultimately, the very
existence of a separate intelligence committee may be called
into doubt as your colleagues and the critics demand more and
more details and become frustrated with your inexplicably
selective cooperation.
exposing your budget to ``shark'' attacks
It strikes me that the most likely result of such a
disclosure from the standpoint of the American taxpayer is
that this large chunk of money will become highly vulnerable
to attack as the budgetary belt is tightened. While Americans
may overwhelmingly favor having an effective intelligence
service and a strong defense establishment, when it comes
down to your being pressured to cut jobs and benefits
programs in your districts or taking a few million here and
there from this gross ``intelligence'' account--money which
will have little clearly identifiable short-term benefits to
constituent groups--the intelligence budget is going to be
placed at risk.
And then, I suspect, you are going to be asked to
``justify'' such a large budget--and you are either going to
have to start ``telling secrets'' or you will face amendments
to cut your aggregate budget by 2% here and 3% there so the
money can go for health care, education, and other special
interests that have far more extensive and effective PR
operations than do the agencies you are charged with
overseeing. I don't think any of us want to have the CIA or
NSA ``propagandizing'' the American voters to pressure
Congress for adequate funding; and because of that handicap I
suggest that you have a special responsibility to the
American people not to allow their intelligence services to
be compromised in order to appease more politically powerful
special interest groups.
Candidly, I don't see much in the way of identifiable
benefits from disclosing the current aggregate Intelligence
Community budget. Perhaps they are there--but the burden of
proof ought to be placed upon those who are advocating the
change.
intelligence community budget figures ought eventually to be made
public
This is not to say, however, that these figures ought to
remain perpetual secrets. On the contrary, I can think of no
reason why the sums made available to the Central
Intelligence Agency and other components of the Intelligence
Community in the 1940s, 1950, and 1960s ought not be made
public at this time (if that has not already been done). I
don't know whether the delay ought to be three decades, two
decades, or even less--but I would be inclined to defer to
the judgment of the President and the DCI in making such a
policy decision.
lives and freedom are at stake
Finally, if you can identify genuine benefits to the
American people of disclosing this information, you need to
ask what harm might reasonably be foreseen to result from
such a change--and to weight any such harm against the
perceived benefits. Perhaps I am in the minority today, but I
believe that when the security of the nation may be at stake
we ought to act with a presumption of caution and secrecy.
The fact that the rest of the world follows that practice is
not proof of its wisdom--but it should give us justification
to pause, at least briefly, before moving off in a radically
new direction.
Some experts have argued what has been called the
``conspicuous bump theory''--suggesting that a foreign
intelligence service might be able to confirm the existence
of an expensive new program or technology by spotting a
change in the CIA or Intelligence Community budget. Former
DCI William Colby--a man of great wisdom and integrity, who
has decades of relevant experience on which to judge--has
suggested that the introduction of the U-2 program produced
just such a ``bump'' in our budget.\49\
I am not privy to the future plans of the Intelligence
Community or the current details of its budget, and I can
certainly not identify any particular development that might
be compromised by publishing an aggregate figure--but I can
certainly conceive of such a development. Indeed, I can
conceive of a decision of such a development. Indeed, I can
conceive of a decision by the United States to curtail
intelligence spending dramatically--requiring the termination
of programs in many Third World countries--and I can project
that public release of figures showing a dramatic drop in
funding might well lead a potentially hostile foreign leader
to conclude that he no longer needed to abide by his NPT
commitments because the Americans no longer had adequate
resources to keep good track of his activities.
the intelligence ``jig-saw puzzle''
The business of intelligence gathering is in many respects
much like putting together a jig-saw puzzle. If you are
looking at the United States, you certainly want to subscribe
to the Congressional Record and Aviation Week & Space
Technology, and also to attend scientific conferences and
carefully review the latest Statistical Abstract and some of
the thousands of other government publications that might
reveal some of the many pieces to the puzzle. When you see
areas where you are missing key pieces, perhaps you pay off a
secretary, seduce a file clerk, break in to a hotel room
while an international conference is in session to rifle a
briefcase or two, and perhaps eavesdrop on a few million
telephone calls. Much of your efforts are fruitless, but more
and more of the puzzle falls into place as each week goes by.
The ones that remain ``critically important'' are the ones
you do not have.
That makes the counter-intelligence function a difficult
one; because, without knowing what pieces of the puzzle one's
adversaries have already acquired, it is virtually impossible
to identify any size piece as being ``vital'' to U.S.
security interests. And yet, quite possibly, almost any
single piece of the puzzle could be the critical part that
allows our enemies to break an important code and do us harm.
Thus, the tradition has developed that the intelligence
business ought, even in a democracy, be cloaked in a web of
secrecy.
Over the years, this Committee and your Senate counterpart
have taken testimony from a number of former DCIs and other
experts asking what specific harm they could identify that
would result from disclosing the aggregate intelligence
budget. Many, if not most, of them, I gather, have said they
could not point to clearly identifiable harm. Others have
urged you not to make the figures public.
I wonder if it might have been useful to ask them another
question. Ask them how much they would pay to have the annual
aggregate intelligence budget figures for countries like the
former Soviet Union, Cuba, Libya, Iran, Iraq, or North Korea.
Would these figures be of interest to them? Might the trends
in these figures over a decade or more be helpful to them? If
they say ``no,'' then I would be less concerned.
Conclusion
Mr. Chairman, let me close with the observation that this
is an important issue. Other than making us feel good--a
byproduct, perhaps, of the strange but all too prevalent
belief that keeping secrets from our nation's enemies is
somehow ``un-American,'' ``dirty,'' or even ``evil''--I don't
believe that publishing the aggregate intelligence budget is
going to benefit very many Americans. It may make a few super
hawks feel relieved that we are throwing enough money at the
problem,\50\ I suspect Oliver Stone and others who believe
that the United States is an evil force in the world may buy
a few extra cases of Malox, and some of your constituents may
even accept the allegation that you will have somehow ``saved
the Constitution'' \51\ by passing such a disclosure
requirement. But most Americans simply don't know enough
about the Intelligence business, about how this money is
actually being spent, to be able to evaluate a figure
presumably in the tens of billions of dollars.
The most likely consequence of publishing an unsupported
aggregate figure is that it will become a sitting duck for
colleagues seeking accounts to cut in order to satisfy the
demands of special interest constituent groups without
further adding to the deficit. You will then be forced to
choose between further breaking down the intelligence
budget--and then being asked, at minimum, to provide public
justification for any future increases--or watching the very
important sum of money you are charged with overseeing ripped
apart as some of your colleagues go on a feeding frenzy.
Members of Congress who do not understand the important
business of intelligence--and, equally importantly, who know
that this large account can't be publicly defended without
disclosing details that its champions will not wish to reveal
to our nation's enemies--are likely to argue that their pet
``pork'' project can easily be funded by just taking a few
hundred thousand dollars from this vast ``intelligence''
account--charging the DCI with finding a little more ``fat''
to trim from his presumably bloated bureaucracy. It could
give a whole new meaning to the term ``graymail''--defend
your budget on the merits in public by compromising secrets,
or watch large chunks of it vanish before your eyes.
The Intelligence Community could easily suffer the fate of
the prized sausage the fabled German butcher is said to have
left displayed unguarded on his counter while he swept out
one afternoon. He returned to find that a tiny slice had been
taken while he was away; but, noting its small size, he
concluded it really didn't matter all that much. An hours
later, when he returned from his storeroom, he found another
piece was gone. This continued for several days. Each missing
slice, after all, was quite modest in size and could hardly
be said to have destroyed the value of the whole. Little by
little, the prized sausage vanished. Pretty soon, only a
small piece of string was left--and that wasn't worth
fighting for either.
In a very real sense, the Intelligence Community budget is
as defenseless as the sausage in the fable. We don't want the
CIA ``propagandizing'' the public to pressure Congress for
additional funds, and we know they can't discuss the
important details of their work without harming their
effectiveness even if they wanted to do so. They provide
[[Page H4982]]
``services'' to Americans of incalculable value, by helping
to keep the world peaceful and identifying threats to our
security sufficiently early that we can address them without
having to expend the lives of our young men and women in
uniform.
Thanks to our Intelligence Community, we learned about the
existence of Soviet missiles in Cuba in 1962, and about
dangerous nuclear weapons and ballistic missile threats from
North Korea three decades later. Each of you could probably
add numerous other examples, because you have been entrusted
with special access to information that must be denied to the
rest of us. But, when the sharks come, you will be precluded
by your promise of secrecy from mentioning those examples in
public debate. How can you possibly expect to convince your
colleagues not to earmark a couple of hundred thousand
dollars for a new public building to honor the beloved Tip
O'Neil, a few million dollars for a powerful committee
chairman's favorite hospital--perhaps to fund some promising
AIDS research--or perhaps to pay for the unanticipated
earthquake relief needs in Los Angeles?
It would not surprise me if some of your constituents would
vote to shut down the entire Intelligence Community if the
money saved could rescue one small child trapped in a well,
to ease the suffering on a pediatric cancer ward, or to take
a real ``bite'' out of crime. After all, the Cold War is
over--and many Americans couldn't find North Korea on a map
without great effort. One of the nice things about being
outside the policy process is that most Americans don't have
to worry about long-term strategic solvency or the risks
that lurk around the corner in an increasingly complex and
not yet safe world. They elected you to represent them in
deciding how to allocate the nation's limited resources,
and in this regard I would remind you of the famous 1774
speech to the Electors of Bristol, in which Edmund Burke
observed: ``Your representative owes you, not his industry
only, but his judgment; and he betrays instead of serving
you if he sacrifices it to your opinion.''
Because of your membership on this important Committee, you
have a special duty--not only to the constituents in your
individual districts, but to all of the American people--to
oversee and pass judgment upon the work of the Intelligence
Community. This system has worked well, in general, by having
your colleagues rely upon you to make recommendations based
upon the special information to which you are given access.
Most of your colleagues hesitate to second-guess your
judgments, because they know they lack your expertise. Simply
gratuitously tossing out an aggregate budget sum--a figure
presumably in the tens of billions of dollars--may well break
some of the mystique that has helped guard these critically
important funds from the sharks in the past.
As I have said, the potential consequences are great.
Imagine the lives that might have been saved had we been able
to prevent the Pearl Harbor surprise attack. Consider what
might have happened had we not learned of the Soviet nuclear
missiles in Cuba. How many more Americans might have died in
the gulf during Operation Desert Storm had it not been for
the information we were able to gain from our overhead
platforms?
Information provided by the American Intelligence Community
reportedly helped to convince the International Atomic Energy
Agency that North Korea was violating its treaty commitments
under the NPT--and that may allow us to avoid a nuclear
confrontation in East Asia that could either engulf U.S.
forces in South Korea or, in the alternative, provoke Japan
to become a nuclear weapons State and undermine the Nuclear
Non-Proliferation Treaty. As we meet here today, American
intelligence assets are presumably monitoring the efforts by
Libya to build new poison gas facilities that could fuel
further terrorism and undermine our interests and the cause
of peace in the coming years.
Mr. Chairman, the job which you and your colleagues on this
Committee have accepted is not an easy one. Today, the
American people are still rejoicing at the end of the Cold
War. They are turning inward, looking for ``peace
dividends.'' But you have a greater responsibility than
simply pandering to their short-term desires. You must decide
what national resources ought to be allocated to the
intelligence functions, and then you must try to protect
those funds in a very competitive budget process.
If you err, and the nation is left unprotected, American
soldiers may well pay with their lives for your frugality.
The stakes in this game are high: they are measured in human
lives and individual freedom. In this regard, you may wish to
keep in mind that the American people are not very forgiving
when their elected representatives fail in their duty to
protect the nation's security--even when their actions are
initially fully in accord with the public opinion polls. Few
of the isolationists who tied President Roosevelt's hands in
the 1930s in the name of ``peace'' and ``neutrality''
survived the elections following Pearl Harbor, an event which
itself might have been prevented by a serious national
intelligence collection effort.\52\
In the backlash to Watergate and Vietnam two decades ago,
the American public turned against the Intelligence
Community--egged on, I would add, by irresponsible charges
from the Hill that the CIA had become a ``rogue elephant.''
\53\ Our elected representatives responded by cutting back on
funding and reducing intelligence assets in several areas--in
particular we reduced money for HUMINT in such
``unimportant'' areas as El Salvador. I need not emphasize
that by 1981 that cutback had proven to be a costly
mistake--both in terms of undermining our efforts to
assist a neighbor resist an externally-supported Leninist
insurgency and our campaign for important human rights
objectives.
When Iranian militants seized American hostages in Tehran
in 1979, the American people wanted quick action. Support for
the CIA shot up dramatically in the polls. Some of the
reductions that had been made in the mid-seventies seemed
hard to explain, and the voters turned out an administration
in Washington that had, for the most part, been very much in
tune with the neo-isolationist sentiments of the Nation prior
to the ``wake up call'' from the Ayatollah Khomeini
The Cold War is now over, but, if anything, the world is a
far more complex reality than was the case when Moscow held
the strings to many of its problem children. The existence of
radical regimes like those in North Korea, Iraq, Iran, Libya,
the Sudan--to name a few--combined with the growth of ultra
nationalism in Eastern Europe, the growing threat of
proliferation of weapons of mass destruction, and our own
obvious vulnerability to international terrorism, make it
more important than ever for us to have a strong and
effective Intelligence Community. Human lives are at stake in
the decisions you make--not only those of our soldiers, but
also those of secretaries and office workers who may find
themselves in situations like the World Trade Center bombing.
You invited me here to address the rather technical
question of whether the Constitution requires the publication
of an aggregate budget figure for the Intelligence Community.
My answer is that it clearly does not--a view consistent with
more than two centuries of established practice, and one
shared by the federal judiciary and at least the Carter
Administration's Justice Department. In contrast, it is worth
noting that in 1977, when your colleagues in the Senate
studied this issue and concluded that the aggregate budget
should be released, they relied upon three law review
articles (all written in the wake of Watergate and the
emotions of the Church and Pike Committee investigations) in
concluding that ``the legal commentators outside the
government who have studied this clause and publicly
commented have concluded that it requires disclosure of at
least an aggregate figure for intelligence activities.'' \54\
What they did not disclose--and what most of the Senators
quite probably did not realize--is that each of the three law
review articles were nothing more than ``Notes'' written by
law students.\55\
The Constitution clearly does not require you to release
current aggregate appropriation figures for the intelligence
community at this time. Whether to do so is entirely within
the discretion of the Congress. That leaves you with the
policy question of whether to publish such a figure for other
reasons. For the reasons already stated, I urge you to
consider the pros and cons of that issue very carefully
before making a decision. I honestly believe it would prove
to be a tragic mistake.
Thank you, Mr. Chairman. That concludes my statement.
footnotes
\1\ Perhaps the most detailed public account I have seen to
date is TIM WEINER, BLANK CHECK: THE PENTAGON'S BLACK BUDGET
(1990).
\2\ 50 U.S.C.A. Sec. 403 f (a).
\3\ Douglas P. Elliott, Cloak and Ledger: Is CIA Funding
Constitutional?, 2 HAST. CONST. L. Q. 717, 731-32 (1975).
\4\ I have not had time to search to see if such polls have
been taken, but I recall that during the height of the Gulf
War the polls showed overwhelming support for the
restrictions placed by the military upon the press.
\5\ The ``Church Committee' concluded ``that publication of
the aggregate figure for national intelligence would begin to
satisfy the Constitutional requirement and would not damage
the national security.'' Quoted in, SENATE SELECT COMMITTEE
ON INTELLIGENCE, REPORT ON WHETHER DISCLOSURE OF FUNDS FOR
THE INTELLIGENCE ACTIVITIES OF THE UNITED STATES IS IN THE
PUBLIC INTEREST 2 (95th Cong., 1st sess., Sen. Rep't 95-274
(1977). The ``Rockefeller Commission'' identified this as an
issue warranting congressional consideration. COMMISSION ON
CIA ACTIVITIES WITHIN THE UNITED STATES, REPORT TO THE
PRESIDENT 81 (1975). There have also been several ``Notes,''
written by law students, reaching this conclusion. See, e.g.,
Fiscal Oversight of the Central Intelligence Agency: Can
Accountability and Confidentiality Coexist?, 7 N.Y.U.J. INT'L
L. & POLITICS 493 (1974); The CIA's Secret Funding and the
Constitution, 84 YALE L. J. 608 (1975); and Douglas P.
Elliott, Cloak and Ledger: Is CIA Funding Constitutional?, 2
HAST. CONST. L. Q. 717 (1975).
\6\ Presumably every school child is familiar with
Jefferson's famous maxim that, ``If a nation expects to be
ignorant and free, in a state of civilization, it expects
what never was and never will be.'' 14 WRITINGS OF THOMAS
JEFFERSON 384 (Mem ed. 1903). Only slightly less popular is
Madison's warning that ``A popular Government, without
popular information, or the means of acquiring it, is but a
Prologue to a Farce or a tragedy; or, perhaps both. Knowledge
will forever govern ignorance. And a people who mean to be
their own Governors, must arm themselves with the power which
knowledge gives.'' 9 THE WRITINGS OF JAMES MADISON 103
(Gaillard Hunt, ed. 1910).
\7\ 3 JOURNALS OF THE CONTINENTAL CONGRESS 392 (1904-14).
\8\ ``Verbal statement of Thomas Story to the Committee,'' 2
P. FORCE, AMERICAN ARCHIVES: A DOCUMENTARY HISTORY OF THE
NORTH AMERICAN COLONIES, Fifth Series, 818-19 (1837-53). For
reasons of readability, I have departed from the practice of
italicizing most of the proper nouns followed in the
original.
\9\ Id. at 819.
[[Page H4983]]
\10\ Id.
\11\ An excellent discussion of this period is contained in
HENRY MERRITT WRISTON, EXECUTIVE AGENTS IN AMERICAN FOREIGN
RELATIONS 18-22 (1929).
\12\ Id. at 23. The internal quotation is cited to a letter
from Jay to Thomas Jefferson (then Minister to Paris) dated
24 April 1787.
\13\ The FEDERALIST, No. 64 at 434-35 (Jacob E. Cooke, ed.
1961) (J. Jay) (emphasis added). Jay's contribution to
understanding the Constitution in this essay can not be
understated. Discussing Jay's subsequent role in explaining
the meaning of the Constitution--and, specifically, this
essay--University of Washington Professor Arthur Bestor
(hardly a champion of strong executive power) has observed:
``In this contribution to the Federalist Jay was of course
examining the completed Constitution, not offering
suggestions to those about to frame it. As an interpretation
of the original intent of the document. Jay's essay is of the
highest importance. His diplomatic experience commencing with
his appointment as minister to Spain in 1779; followed by his
participation, as one of the commissioners, in the
negotiation of peace with Great Britain; and continuing, from
1784 on, with his service as Secretary of the United States
for the department of Foreign Affairs--fitted him better than
anyone else to judge the intended effect of the new
Constitution both on the actual process of negotiation and on
the character of the relationship that would have to be
maintained between executive and legislative authorities.''
Bestor, Separation of Powers in the Domain of Foreign
Affairs, 4 SEATON HALL L. REV. 527, 532-33 (1974). Professor
Gordon Baldwin concludes: ``John Jay, an experienced attorney
and diplomat, suggested that intelligence gathering
arrangements are within the sole power of the President. In
his view, they are a purely executive function linked to the
treaty negotiation process, and the information so gained
need not be reported to Congress.'' Gordon Baldwin,
Congressional Power to Demand Disclosure of Foreign
Intelligence Agreements, 3 BROOKLYN J. INT'L L. 1, 17 (1976).
\14\ Federalist No. 64.
\15\ The Complete Anas of Thomas Jefferson 72-73 (Franklin B.
Sawvel, ed. 1903). This document also appears in 1 The
Writings of Thomas Jefferson 191 (Paul Ford, ed., 1892).
\16\ The Convention was to begin on the second Monday in May
(14 May), but a quorum did not arrive until the 25th.
\17\ 1 Max Farrand, The Records of the Federal Convention of
1787 at 15 (1966).
\18\ Clinton Rossiter, 1787: The Grand Convention 167 (1966).
\19\ Farrand, The Records of the Federal Convention, supra
note 17, at xv.
\20\ James Madison, 2 ``The Journal of the Constitutional
Convention,'' in 4 The Writings of James Madison 456-57
(Gaillard Hunt, ed. 1903). With only minor changes in
punctuation and typography, this same debate appears in 2 Max
Farrand, The Records of the Federal Convention of 1787 at
618-19 (1966).
\21\ 4 Writings of James Madison 449-50; 2 Farrand, Records
of the Federal Convention 613.
\22\ 3 Farrand, Records of the Federal Convention 326.
\23\ Id.
\24\ Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 418 (1821).
\25\ Not being privy to the budgetary figures for the Central
Intelligence Agency I can not say with certainty, but I
suspect this 1790 appropriation provided the President with a
larger portion of the federal budget than is today allocated
to the CIA.
\26\ Act of 1 July 1790, 1 Stat. 129 (1790).
\27\ Ed Sayle, The Historical Underpinnings of the U.S.
Intelligence Community, 1 International Journal of
Intelligence and Counterintelligence 9 (1986).
\28\ 11 THE WRITINGS OF THOMAS JEFFERSON 5, 9, 10 (Mem. ed.
1904). For a discussion of Jefferson's theory that the
``executive power'' clause of Article II, section 1, had
vested in the President the entire business of external
intercourse save for the expressed grants to Congress and the
Senate (such as the power of the Senate to approve
nominations and treaties, and the veto given Congress over a
decision to initiate an offensive ``war'')--a view shared by
Washington, Hamilton, Jay, Marshall, and others--see ROBERT
F. TURNER, REPEALING THE WAR POWERS RESOLUTION: RESTORING THE
RULE OF LAW IN U.S. FOREIGN POLICY 47-107 (1991).
\29\ I discuss this incident in some detail in a forthcoming
book.
\30\ 3 Stat. 471 (1818).
\31\ President Roosevelt appointed ``Wild Bill'' Donovan as
``Coordinator of Information''--which led directly to the OSS
and CIA--on 18 June of that year, and funding for the
Manhattan Project apparently began around 9 October. See TIM
WEINER, BLANK CHECK: THE PENTAGON'S BLACK BUDGET 19, 113
(1990).
\32\ 63 Stat 208, Pub. L. 81-110, codified at 50 U.S.C.A.
Sec. 403 et seq.
\33\ The most noteworthy of these, perhaps, was the effort by
the Senate Select Committee on Intelligence to change the
practice in 1977. While a majority of the committee voted for
that end, the dispute was apparently so heated that no one
brought the measure to the floor.
\34\ 418 U.S. 166 (1974).
\35\ 418 U.S. at 178 n.11.
\36\ 629 F.2d 144 (D.C. Cir. 1980). Another useful case from
the same circuit is Harrington v. Bush, 553 F.2d. 190 (D.C.
Cir. 1977), in which the court rejected on standing grounds a
similar challenge brought by a Member of Congress, and in the
process concluded with respect to the ``regular Statement and
Account'' clause: ``This clause is not self-defining and
Congress has plenary power to give meaning to the provision.
. . . Since Congressional power is plenary with respect to
the definition of the appropriations process and reporting
requirements, the legislature is free to establish exceptions
to this general framework, as has been done with respect to
the CIA.'' Id. at 194-95.
\37\ 629 F.2d at 162.
\38\ Id. at 155.
\39\ Id.
\40\ Id. at 156.
\41\ Letter from President Carter to the Senate Select
Committee on Intelligence, quoted in SENATE SELECT COMMITTEE
ON INTELLIGENCE, REPORT ON WHETHER DISCLOSURE OF FUNDS FOR
THE INTELLIGENCE ACTIVITIES OF THE UNITED STATES IS IN THE
PUBLIC INTEREST at 6.
\42\ Quoted supra, note 6.
\43\ 15 The Writings of Thomas Jefferson 303 (Mem. ed. 1903).
\44\ Federalist No. 3 at 13-14 (Jacob E. Cooke, ed. 1961)
(emphasis in original).
\45\ 453 U.S. 280 (1981).
\46\ See supra, text accompanying note 20.
\47\ Fiscal Oversight of the Central Intelligence Agency: Can
Accountability and Confidentiality Coexist?, 7 N.Y.U. J.
Int'l L. & Politics 493, 521 (1974).
\48\ The CIA's Secret Funding and the Constitution, 84 YALE
L. J. 608, 633 n.137 (1975). Keep in mind that the Church
Committee said ``publication of the aggregate figure . . .
would begin to satisfy the Constitutional requirement . . .
[emphasis added].'' See supra, note 5.
\49\ Senate Select Committee on Intelligence, Report on
Whether Disclosure of Funds for the Intelligence Activities
of the United States is In the Public Interest 8.
\50\ Without further details, no one will be able to make an
intelligent judgment about the wisdom of the expenditures
contained in the aggregate figure; and I predict that if you
do release such a figure you will be forced to break it down
further (at least by agency or category) within a few years.
\51\ If your primary interest is in upholding the
Constitution, I can suggest any of a number of measures
Congress might take toward that end--such as repealing the
1973 War Powers Resolution, which even Senator George
Mitchell admits is unconstitutional, or repealing some of the
hundreds of new ``legislative vetoes'' that have been enacted
after the 1983 Supreme Court decision (INS. v. Chadha)
declaring such measures to be unconstitutional. See, e.g.,
Robert F. Turner, Repealing the War Powers Resolution:
Restoring the Rule of Law in U.S. Foreign Policy (1991).
\52\ See, e.g., 95 Cong. Rec. 1948 (1949) (remarks by Sen.
Tydings), cited in Douglas P. Elliott, Cloak and Ledger: Is
CIA Funding Constitutional?, 2 Hast. Const. L.Q. 717, 729
(1975).
\53\ To be sure, the Intelligence Community engaged in
activities that most of us today would consider improper--but
even Senator Church ultimately acknowledged that the ``rogue
elephant'' metaphor he coined was inaccurate and the
Community has been following instructions from the nation's
elected political leaders.
\54\ Senate Select Committee on Intelligence, Report on
Whether Disclosure of Funds for the Intelligence Activities
of the United States Is in the Public Interest at 4 n.6.
\55\ The student Notes in question are cited supra, note 5.
Mr. GOSS. Mr. Chairman, this is one of the situations where there is
a lot of misinformation, a lot of perception, a lot of misperception
frankly. There clearly is a slippery slope here, because the gentleman
from Michigan's amendment talks about the annual statement of the total
amount for intelligence expenditures. The problem with that is that if
we give a number and we say these are intelligence expenditures, then
we have to start defining what is intelligence. It is not exactly what
other people think it is going to be. We will have to start paring out
different programs and different functions to determine what we mean.
Are you talking about the amount we spend on national security? That
should surely be a big number. It is required in the Constitution. That
is something the Federal Government does. Are we talking about the
intelligence function in national security? And if so, what does that
number mean and what specifically does it include and what does it
leave out? What is intelligence? Is the State Department gathering of
information or reading Le Figaro, is that part of intelligence? Is that
open source intelligence or not? You have to start making further
descriptions and definitions. That is the slippery slope.
Mr. DICKS. Mr. Chairman, will the gentleman yield?
Mr. GOSS. I yield to the gentleman from Washington.
Mr. DICKS. Mr. Chairman, I think this bill is intelligence. We are
the ones that just authorized it. So that is pretty much what it is.
Mr. GOSS. Mr. Chairman, I quite agree. The gentlewoman from
California said one of the worst kept secrets in Washington is the
intelligence budget. One of the worst kept secrets in Washington is,
what is the intelligence part of the intelligence budget? What is the
intelligence part of the defense budget?
Some have said that we are hiding something from Americans. We are
not trying to hide anything from Americans. We are trying to keep some
secrets from our enemies. That is true. We are trying to do that. But I
would point out to those who say we are trying to hide something from
Americans, we have a representative form of government. This is
democracy at its finest in the world. Those of us here represent those
of us abroad in our land.
Those of us on the committee are charged with the responsibility of
oversight. It was not always such good oversight. It is very good
oversight now, and we are accountable. I would say we are hiding
nothing from the Americans because there is no American that I would
look at right in the eye and say, we are spending the money as wisely
and as well as we can and as appropriately as we can. Fifteen men and
women, good and true, making that decision about what our intelligence
needs are at this time, I have no problem with that. I think that is
entirely reasonable.
When I go beyond that and start talking about specifics, I start
removing some of the confusion the enemy seize out there. I think
confusion to
[[Page H4984]]
our enemies is not a bad thing. It is somewhat Biblical, in fact. I
think it has worked very well over in the past. I do not see the game.
If it is accountability, the accountability is there. We already have
it.
The final point of the gentlewoman from California, the President is
somehow waiting for the signal; whoever made that statement, perhaps it
was not the gentlewoman from California, let me tell my colleagues that
it was President Clinton himself who classified the number when he sent
his budget submission to Congress in March. It was not the Congress. We
do not have the authority to classify anything. It is the executive
branch that classifies things.
We are putting money in our bill to examine the question of
declassification because we are properly concerned about it. That also
in my view means abuse of classification. I know that takes place. So I
would suggest the right way to deal with this is to go to the
comprehensive study we have called for in our bill, that we have
provided for in our bill, authorized funds for and I hope we will get
those funds from the appropriators, and I believe we are and that we
proceed in an orderly way. That way we protect national security. We
provide for accountability. And we give the President and his people
the opportunity to chime in on the debate.
Mr. Chairman, I urge a ``no'' vote on the Conyers amendment.
Mr. STARK. Mr. Chairman, I rise in support of the Conyers amendment
to H.R. 1775, the Intelligence Authorization Act of 1997.
There is no reason for the intelligence budget to be classified
information. How can we justify a multibillion--or is it more--blank
check every year without adequate oversight and minimum public
discussion?
If this Congress is serious about balancing the budget, we should not
throw money into an unaccountable hole. Since almost all of the
intelligence spending is hidden within the defense budget, we are
misled about the real amount of intelligence spending through false
line items in the defense budget. We must have budget integrity.
The intelligence budget is routinely reported by the media without
compromising national security. When the Government keeps this open
secret clandestinely hidden, the American public grows increasingly
cynical about their Government.
I believe that our intelligence community could better justify the
funding they receive from Congress with a disclosed budget. In the same
vein, the intelligence community could help to balance the budget by
submitting their funding to the same scrutiny faced by domestic
priorities.
This amendment is about accountability and the public's right to
know. There is no reason to keep this information from a full and open
debate.
I urge my colleagues to support the Conyers amendment.
Mr. FARR of California. Mr. Chairman, I rise today in support of the
Conyers amendment to declassify the size of our Nation's intelligence
budget.
It makes no sense to keep the size of our intelligence budget a
secret. It would not threaten our national security. Several former
Directors of the Central Intelligence Agency and the bipartisan Brown-
Aspin Commission have agreed that disclosure of the aggregate
intelligence budget would not reduce our Nation's security. In fact,
many other countries disclose the amount they spend on intelligence,
with no impact on their own nation's security.
But what such secrecy does do is keep our own citizens in the dark.
At a time when so many programs are being drastically reduced in the
name of deficit reduction, the American taxpayer isn't even told how
much is being spent on intelligence programs.
I am a proud cosponsor of H.R. 753, the Intelligence Budget
Accountability Act, which would declassify the aggregate intelligence
budget. This is long overdue, and I urge adoption of the Conyers
amendment to the Intelligence Authorization Act to accomplish this
important goal.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from Michigan [Mr. Conyers].
The question was taken; and the Chairman announced that the noes
appeared to have it.
Recorded Vote
Mr. CONYERS. Mr. Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 192,
noes 237, not voting 5, as follows:
[Roll No. 254]
AYES--192
Abercrombie
Ackerman
Allen
Andrews
Baesler
Baldacci
Barcia
Barrett (WI)
Becerra
Bentsen
Berman
Berry
Blagojevich
Blumenauer
Bonior
Borski
Boswell
Boucher
Boyd
Brown (CA)
Brown (FL)
Brown (OH)
Capps
Carson
Chabot
Chenoweth
Christensen
Clay
Clayton
Clement
Clyburn
Condit
Conyers
Costello
Coyne
Crapo
Cummings
Danner
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dellums
Deutsch
Dicks
Dingell
Dixon
Doggett
Dooley
Duncan
Ensign
Eshoo
Evans
Farr
Fattah
Fazio
Filner
Flake
Foglietta
Ford
Fox
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gonzalez
Goode
Goodlatte
Gordon
Green
Gutierrez
Hall (TX)
Hamilton
Harman
Hastings (FL)
Hefner
Hilliard
Hinchey
Hinojosa
Hooley
Horn
Istook
Jackson (IL)
Jackson-Lee (TX)
Johnson (WI)
Johnson, E. B.
Kanjorski
Kennedy (MA)
Kennedy (RI)
Kennelly
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Lantos
Leach
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Maloney (CT)
Maloney (NY)
Manton
Markey
Martinez
Matsui
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McHale
McKinney
McNulty
Meehan
Meek
Menendez
Metcalf
Millender-McDonald
Miller (CA)
Minge
Mink
Moakley
Moran (VA)
Morella
Nadler
Neal
Oberstar
Obey
Olver
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Petri
Pomeroy
Poshard
Price (NC)
Rangel
Reyes
Riggs
Rivers
Roemer
Rohrabacher
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sawyer
Schumer
Scott
Serrano
Shays
Sherman
Skaggs
Slaughter
Smith, Adam
Snyder
Spratt
Stabenow
Stark
Stenholm
Stokes
Strickland
Stupak
Tauscher
Thompson
Thurman
Tierney
Torres
Traficant
Turner
Velazquez
Vento
Waters
Watt (NC)
Waxman
Wexler
Weygand
Woolsey
NOES--237
Aderholt
Archer
Armey
Bachus
Baker
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bateman
Bereuter
Bilbray
Bilirakis
Bishop
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bono
Brady
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Cardin
Castle
Chambliss
Coble
Coburn
Collins
Combest
Cook
Cooksey
Cox
Cramer
Crane
Cubin
Cunningham
Davis (VA)
Deal
DeLay
Diaz-Balart
Dickey
Doolittle
Doyle
Dreier
Dunn
Ehlers
Ehrlich
Emerson
Engel
English
Etheridge
Everett
Ewing
Fawell
Foley
Forbes
Fowler
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goodling
Goss
Graham
Granger
Greenwood
Gutknecht
Hall (OH)
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Holden
Hostettler
Houghton
Hoyer
Hulshof
Hunter
Hutchinson
Hyde
Inglis
Jefferson
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones
Kaptur
Kasich
Kelly
Kim
King (NY)
Kingston
Klink
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Lewis (CA)
Lewis (KY)
Linder
Lipinski
Livingston
LoBiondo
Lucas
Manzullo
Mascara
McCollum
McCrery
McDade
McHugh
McInnis
McIntosh
McIntyre
McKeon
Mica
Miller (FL)
Molinari
Mollohan
Moran (KS)
Murtha
Myrick
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Ortiz
Oxley
Packard
Pappas
Parker
Paxon
Pease
Peterson (PA)
Pickering
Pickett
Pitts
Pombo
Porter
Portman
Pryce (OH)
Quinn
Radanovich
Rahall
Ramstad
Redmond
Regula
Riley
Rodriguez
Rogan
Rogers
Ros-Lehtinen
Roukema
Royce
Ryun
Salmon
Sandlin
Sanford
Saxton
Scarborough
Schaefer, Dan
Schaffer, Bob
Sensenbrenner
Sessions
Shadegg
Shaw
Shimkus
Shuster
Sisisky
Skeen
Skelton
Smith (MI)
Smith (NJ)
Smith (OR)
Smith (TX)
Smith, Linda
Snowbarger
Solomon
Souder
Spence
Stearns
Stump
Sununu
Talent
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Thune
Tiahrt
Upton
Visclosky
Walsh
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wise
Wolf
Wynn
Young (AK)
Young (FL)
[[Page H4985]]
NOT VOTING--5
Bass
Edwards
Schiff
Towns
Yates
{time} 1851
Mr. BOB SMITH of Oregon, Mr. BOB SCHAFFER of Colorado, and Mr. GILMAN
changed their vote from ``aye'' to ``no.''
Mr. MANTON and Ms. EDDIE BERNICE JOHNSON of Texas changed their vote
from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.