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Intelligence’: The Constitution Betrayed

Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities

United States Senate
US Government Printing Office, Washington

I

From the voluminous reports on the criminal activities of what is somewhat quaintly called the intelligence community, it is difficult for us to know whether to be more astonished at the arrogance of a succession of presidents who presided over it, or at the pusillanimity of successive Congresses which acquiesced in it—and financed it. More depressing than astonishing is the realization that neither the current president nor the current Congress appears to have learned very much from this somber chapter of our history.

Over the past two decades presidents and congressmen alike have consistently and, apparently, with clear conscience betrayed the Constitution they swore to sustain. Presidential betrayal was a product, however distorted, of the office, which has boasted a long history of aggrandizement; betrayal by the Congress, passive rather than active, was precisely in its inactivity a repudiation of its historic—and its constitutional—role, and therefore doubly culpable. The constitutional injunction to take care that the laws are faithfully executed is, to be sure, laid on the president, but it is the Congress which, by virtue of its control of the purse, its power of investigation, and its power to impeach, should be the special guardian of the Constitution. It is a duty which has long been neglected and there is little reason to believe that the Congress is about to repair that neglect.

Unfortunately the exposure of the lawlessness of the CIA and the FBI and of other intelligence activities (the use of secret data by the Internal Revenue Service for purposes of harassment, for example) was neither dramatic nor conclusive. Each day brought its quota of revelations which, with the connivance of the president, spokesmen for the intelligence community minimized, or explained away as aberrations, or as the price which had to be paid for achievements never specified. Each new disclosure was dismissed as incidental, or fortuitous, to the otherwise beneficent work of the agency involved. Only rarely was there any hint that more was at stake than the unfortunate behavior of some nameless agent whose errors could be shrugged off as products of an excess of zeal. The question of legality simply never arose, not even at the highest level: another example of the banality of evil.

Some newspapers—The New York Times, The Washington Post most conspicuously—some journals—The New York Review of Books, The Nation, The Progressive—did their best to focus public interest on issues of principle, but in vain, for they appealed chiefly to those already committed to constitutionalism, and did not reach those who thought that consideration irrelevant. As for television, it was committed almost by its nature to reporting the transient and the episodic rather than interpreting the permanent and the substantial: there was no repetition of the coverage of the McCarthy hearings or the Watergate hearings.

The Rockefeller report, which concealed as much as it revealed, was something less than bold, and President Ford’s gesture toward more effective control of intelligence agencies proved merely an endorsement of existing practices and malpractices, rather than a reform. Thus where the Nixon conspiracy to brush aside Watergate and the tapes as mere peccadilloes failed, the Ford-CIA conspiracy to confound and silence criticism, or to link it with softness toward communism, succeeded. It succeeded, however, only with the connivance of the Congress.

The emergence of intelligence over the past quarter-century as an almost independent branch of the executive, largely immune from either political limitations or legal controls, poses constitutional questions graver than any since the Civil War and Reconstruction. The challenges of that era threatened the survival and the integrity of the Union; the challenges of the present crisis threaten the integrity of the Constitution. If what we may call the Nixon-Ford theory of the executive power and of the Constitution (perhaps we should not add this, for there is little evidence that either entertained any constitutional theory at all) should prevail, the Constitution will be deflected from its original character, and a revolution as far-reaching as that of 1860-1868 (but not as beneficent) will have been effected without either public debate or legal sanction, but by deception, subterfuge, lassitude, and default.

This is the larger issue, overshadowing all the particular problems and crises that have engaged and distracted our attention for the past two years: the survival of our constitutional system and of the rule of law.

Our inquiry begins with the metamorphosis of two old and familiar concepts into political institutions with a life of their own: the concept of “national security” and the concept of “secrecy.” Few things are more ominous than the audacity with which the claim of “national security” as a cover for almost anything the executive wishes to do has been advanced, except the casualness with which it has been accepted. The phrase itself is unknown to the Constitution; it is not therefore a substantive power but a principle in search of a definition. The Constitution does require the president to “take care that the laws are faithfully executed”—an admonition which scarcely authorizes him to nullify them. Yet it is precisely the assumption—unilateral to be sure—that the concept is a blank check, that provided the basis for the Bay of Pigs; justified Johnson’s invasion of Santo Domingo, presided over the fraud of the Tonkin Gulf operation (one which the Congress was tricked into approving), dictated the invasion of Cambodia, authorized the gross intervention in the internal affairs of Chile, excited hysterical approval for the illegal Mayagüez operation, and was invoked to justify systematic lying to the Congress and the American people about all these enterprises.

The second concept is equally familiar, for secrecy is as old as politics, and in America as old as the Revolution and the Federal Convention. But only in our time has it come to be not so much a means as an end in itself, and to permeate the whole of public life. That there must be secrecy in planning—secrecy in board meetings, in faculty meetings, in committee meetings, in cabinet meetings, in conducting the operations of war and so forth—is obvious; that is very different from secrecy in major commitments or major policies.

The fact is that the primary function of governmental secrecy in our time has not been to protect the nation against external enemies, but to deny to the American people information essential to the functioning of democracy, to the Congress information essential to the functioning of the legislative branch, and—at times—to the president himself information which he should have to conduct his office. From time immemorial a familiar tool of despotic governments, secrecy is, in all but emergency situations, not only alien to but subversive of democracy. The reason why investigation of the CIA and the FBI is of such importance is not merely to detect and expose particular outrages which they have committed, but to make clear that the very principle of secrecy, unregulated and unrestrained, is odious to our kind of government and may destroy it.

During most of the past decade the president and the intelligence community have regarded themselves as above the law and the Constitution, or have assumed that the Constitution was what they chose to make it: it is this indifference to constitutional restraints that is perhaps the most threatening of all the evidence that emerges from the findings of the Church committee. Presidents Johnson and Nixon both thought themselves above the law, and in this they were for the most part sustained by their attorneys general; it is no less alarming that a large segment of the Congress acquiesced in this assumption of executive immunity from Constitutional restraints. But it this not the very definition of tyranny?

II

Turn then to a consideration of those issues implicit in the executive invocation of “national security” and of secrecy, and explicit in the findings of the Rockefeller, the Church, and the Pike committees, but not adequately clarified or resolved by them.

First is the integrity of democracy and of representative government. It should be (but alas is not) too elementary to say that when, as in our system, government is made by and belongs to the people, they not only have a right to know what their government is about but must do so if democracy is to function. That was one of the persistent themes of the Revolutionary era—that only where government was open, the press free, and the people educated, could self-government flourish. To deny the people knowledge of what their government does is to deny them the ability to pass judgment on its conduct, and thus to make a mockery of the democratic process. If recent administrations had respected this elementary principle we might have avoided the Bay of Pigs, war in Laos, Vietnam, and Cambodia, and alienation of much of world opinion by our ill-considered interventions in the internal affairs of Greece, Portugal, Chile, and many other countries.

Second is the integrity of the Constitution. Unilateral interpretation of national security and resort to secrecy, especially in foreign affairs, violate not only specific provisions of the Constitution but its fundamental character. For there is nothing more fundamental than the principle that in their separate spheres—that is, in the exercise of powers duly authorized—the executive and the legislative departments are equal and independent: the principle implicit in the Federal Constitution is explicit in a number of the state constitutions. To the Congress was assigned specific and extensive legislative powers, and in addition a share in some that were executive in nature. Clearly to fulfill its constitutional obligations, the Congress must have access to all information relevant to legislation. To withhold or to conceal information essential to law-making—as the executive has been doing for more than a decade, on a vast scale—is to undermine the foundations of the Constitution. The executive has no more right to deny to the Congress information it needs for law-making than it has to deny to the courts information essential to arriving at sound judgments in cases before them.

Third is the vindication of the great principle, written into the Constitution, that the power of the purse belongs to the Congress. All the Founding Fathers knew the long history of the struggle between the Parliament and the Crown for control of the purse in the Tudor and Stuart period, and knew, too, that it was the victory of the Parliament on this issue that forever ended the threat of royal tyranny in Britain itself. That struggle was part of American history, too, and the control of the purse by colonial legislatures was one of the instruments for independence.

So vital was this principal that the Fathers wrote it into both their state and their national constitutions. In doing this they were animated by the fear of just such reckless misuse of money for military adventures as we have witnessed again and again in our own time. Thus George Mason—who drafted the first Bill of Rights—observed that “the purse and the sword must not be in the same hands,” and thus, too, James Madison considered it “highly dangerous to give the keys to the Treasury and the command of the army into the same hands.” In his memorable Commentaries on the Constitution, Justice Joseph Story restated the basic principle:

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