THE United States House of Representatives will soon consider the Intelligence Oversight Act of 1988, a bill to implement the major legislative recommendations of the special Iran-contra committees. It is similar to a measure recently passed in the Senate with strong bipartisan support. The bill reaffirms current law, which requires the president in most cases to notify the House and Senate Intelligence Committees before undertaking a covert action, such as the secret arms sales to Iran. It then provides for an exception permitting the president to dispense with prior notice ``when time is of the essence''; in such cases, however, the president must inform the committees ``as soon as possible,'' but in no event later than 48 hours after the covert action has been authorized.
When President Reagan embarked upon his weapons sales to Iran, he told no one in Congress before or after the fact. The policy became known more than 10 months later only because a magazine in the Middle East published the details.
In our democracy, where policymaking is the shared responsibility of the president and Congress, no president has the right to make and conduct policy in total secrecy. It violates the right of Congress to know and undermines the trust and confidence that are essential to the effective conduct of American foreign policy. As the Iran case amply demonstrates, if the secret policy directly contradicts the nation's public policy, loss of trust and confidence can be particularly serious.
The Iran case also illustrates why prior notice to relevant members of Congress can be of practical importance to a president: If Mr. Reagan had told the Intelligence Committees that he planned to sell arms to Iran, they surely would have urged him not to proceed; he might have been dissuaded from a policy that damaged the nation and his credibility.
Current law permits a president to dispense with prior notice, but then notice of the covert action must be given ``in a timely fashion.'' When this exception was debated by Congress in 1980, its authors clearly indicated that it should apply only where time was of the essence and the president believed immediate action was necessary. There was no intent to allow a president to keep Congress in the dark indefinitely.
Yet, the administration claims that the current law gives a president discretion to withhold notice for as long as he deems appropriate, even for more than 10 months; timely notice is whatever the president says it is. If Congress allows this interpretation to stand, a future president may keep an important policy decision from Congress for any length of time and for any reason, including political expediency.
The pending bill would correct this unreasonably permissive interpretation of current law by spelling out Congress's original intent: Prior notice can be dispensed with only where time is of the essence, and then notice must be given as soon as possible but no more than 48 hours after the covert action is authorized.
Some critics argue that this would deprive the president of his ability to conduct covert actions. On the contrary, the president could still initiate covert operations without prior approval. He would simply have to give prompt notice to certain key members of Congress.
The administration and other critics contend that this runs the risk of a leak that could jeopardize lives. To address this, current law and the pending bill permit the president in particularly sensitive cases to restrict notice of a covert action to just eight members of the congressional leadership. But this is still not restrictive enough for the critics; they believe the president should be able to exclude all members of Congress.
This is unreasonable and dangerous. There are many executive-branch officials who know about covert actions. Are they inherently more trustworthy than the congressional leadership? In the Iran arms case, the administration kept the Speaker of the House and the Senate majority leader in the dark, while trusting Ayatollah Ruhollah Khomeini and privateers like Manucher Ghorbanifar, Richard Secord, and Albert Hakim. The only ones misled were the American people and their elected representatives.
Congress cannot legislate good judgment. But by clarifying what is meant by timely notification in these cases, it might help to promote meaningful consultation and cooperation between the branches. There is no guarantee that future policy decisions will be sound, but such cooperation improves the odds and keeps faith with our constitutional form of government.
Matthew F. McHugh (D) of New York is a member of the House Permanent Select Committee on Intelligence and chairman of its Subcommittee on Legislation.