On January 17, 1986, President Ronald Reagan signed a secret finding authorizing the covert sale of American arms to Iran: the Iran-contra affair had officially begun. In the ensuing months, the Reagan Administration pursued policies which would ultimately bring into question the integrity of the United States government. Pursuant to the secret finding, the government sold sophisticated missiles to Iran despite the President’s prior denunciations of that country as a fountain of terrorism. Members of the Reagan Administration negotiated the exchange of arms for hostages despite the President’s assurances to the American people that such dealings would never be countenanced. Finally, under the direction of Oliver North, a mid-level official in the National Security Agency, profits from the covert sale of arms to Iran were diverted into Swiss bank accounts and then secretly funneled to the counterrevolutionaries in Nicaragua (the “contras”) to support their attempts to overthrow the recognized government of Nicaragua.
While the Administration did not hesitate to give information about the covert arms sales to “an Iranian intermediary who failed several CIA lie detector tests, Iranian Government officials, Israeli Government officials, officials of the Government of a European country, private Israeli businessmen, and private U.S. citizens who did not have security clearances, such as [Albert] Hakim,” it cloaked its actions from both Congress and the American people. When the President signed the secret finding on January 17, 1986, he not only authorized the covert arms sales to Iran but also ordered the Director of Central Intelligence, William Casey, to withhold prior notification of the arms sales from Congress. That order violated Title V of the National Security Act of 1947.
Title V is the statute which governs congressional oversight of covert operations. Drafted to limit the Executive Branch’s ability to conduct covert operations in total secrecy and without accountability,9 Title V requires the Director of Central Intelligence and the heads of any other agencies involved in intelligence activities to inform the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence (“the intelligence committees”) of any covert operation prior to its initiation. In extraordinary circumstances, the President may limit notification to eight members of Congress specified by title in the statute.
Claiming that the President did not act improperly in directing Casey to withhold prior notification of the arms sales from Congress, the Reagan Administration has asserted three justifications for the President’s violation of Title V. First, withholding notice was necessary because the covert arms sales were so sensitive that any unauthorized disclosure would threaten the lives of both the American hostages being held in Lebanon and the Iranians cooperating with the American government. Second, the President has the authority under Title V to withhold notice of a covert operation until he believes that the disclosure will not interfere with the operation’s success. Third, the President may waive the requirements of Title V when he believes that national security will be served.
This Note will argue that none of these justifications is valid. The Reagan Administration bases the first two justifications on its faulty construction of Title V. An analysis of the events leading up to the adoption of Title V, the legislative history of Title V, and the plain language of Title V will demonstrate that the Administration’s construction of the statute is erroneous. The Administration’s third justification is essentially a claim of executive privilege to withhold prior notice from Congress. Executive privilege is “the alleged authority of the executive to deny access to information in its possession, to Congress or the judiciary, even when those branches have affirmatively requested or commanded that the executive produce such information.” President Reagan’s claim of executive privilege to withhold prior notice conflicts directly with the congressional demand for prior notification of covert operations embodied in Title V. To determine whether the President’s claim of privilege is constitutional, this Note will analyze it within the framework for resolving separation-of-powers disputes which Justice Jackson applied in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer. The Note will conclude that the President’s claim of privilege is unconstitutional.
A complete analysis of the Reagan Administration’s statutory and constitutional justifications requires an understanding of both the historical precedent for the claim of executive privilege and the development of congressional oversight of covert operations. Section I of this Note will, therefore, describe the historical precedent for claims of executive privilege. Section II will review the development of congressional oversight of covert operations. The third section of the Note will recount the President’s decision to withhold prior notice of direct, covert American arms sales to Iran. Section IV will analyze the Administration’s three justifications for noncompliance with the requirements of Title V which the Reagan Administration has forwarded. The final section will analyze legislation, presently being considered by Congress, which is designed to improve the current system of congressional oversight of covert operations.
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