American's spies without a charter
We can understand Senator Huddleston's feelings. He was "very reluctantly" giving up his long battle for a balanced and comprehensive charter to bolster and control the CIA and other United States intelligence agencies -- and the president who has ultimate responsibility for them -- to prove they can operate effectively under the Constitution without the full legislative framework that seemed and abuses exposed in recent years.
Indeed, under piecemeal legislation proposed in the absence of a charter, the statutory strings would be so loose that intelligence officials would need a particularly scrupulous sense of individual conscience and constitutional principles. As Senate committee work goes forward this weak, there is expectation that further loosening may take place. If such momentum cannot be resisted, there will be even more necessity for members of the spy community all along the line to exemplify the qualities of integrity and of intelligence in its broader sense that can assure expert information-gathering without abuses.
Such qualities, of course, would have been required even with a charter. The evidence unearthed by the congressional and administration intelligence investigations showed how far any norms can be evaded. And the evolving charter had been shortened and watered down in the congressional process as administration support for it wanted. It might have enshrined some dubious intelligence practices while ruling out others.
Yet a charter at its best would have had the merit of laying out thoroughly the intent of the American people as represented by Congress. As former CIA director William Colby said in strongly supporting a charter introduced by Senator Huddleston, it would be an improved approach under which "the rules will be set by our constitutional machinery and the procedures for responsibility and accountability will be clear."
The proposed piecemeal legislation would actually repeal some of the previous legislation intended to reinforce accountability. For example, it would change the Hughes-Ryan amendment under which the membership of eight Senate and House committees could theoretically be told of CIA covert activities. In practice, however, as Representative Les Aspin has pointed out, such reports are received by no more than 27 members of the House, 19 senators, and 17 staff members. He argues that this is not an unreasonable number and that many covert operations have taken place without congressional leaks under this system. Bitter experience provides support for his view that "the key to avoiding covert action disasters is the assurance that a cross section of people will consider [such actions]."
Under the proposed legislation, only the Senate and House intelligence committees would need to be informed, with various exceptions even to this. Also, instead of supplying strict rules on illegal activities, it says actions by any intelligence agency should conform to procedures approved by the agency head -- another reason for the greatest conscientiousness of officials. And, on the vexed question of how far constitutional rights protect foreigners in the US and Americans traveling abroad, the proposals again do not spell out statutory requirements. Instead, they say guidelines for spying on such persons should be approved by the attorney general.
While making it a crime for persons with authorized access to disclose the names of intelligence operatives, the legislation does not go so far as to accept the CIA's position that outsiders such as journalists should be covered, too. But it exempts the CIA from some of its present disclosure requirements under the Freedom of Information Act. And, by omitting a prohibition on the use of journalists as spies, it leaves the intelligence agencies free to use their own judgment.
All of which brings us back again to the central importance of the people in the jobs that will not be covered by a comprehensive charter. They and their leader in the White House must be models of that ceaseless vigilance which is the price of liberty -- both in the sense of vigorously obtaining information for the nation's security and monitoring their own actions in keeping with American principles.
