How freely should employees of the executive branch talk to members of Congress?
The question has long bedeviled executive-legislative relations. It now recurs in the 1998 intelligence authorization act, pending before a congressional conference committee. The Senate version of the bill has a provision protecting government employees who tell members of Congress classified information exposing a crime, false testimony, fraud, or other abuses. Such employees would be immune to reprisal even if they acted without approval from their superiors, provided, always, that the information was disclosed only to appropriate members of Congress. In the case of the CIA, that would mean members of the intelligence committees.
The House version of the bill has no comparable provision, and the White House threatens a veto of the whole authorization unless the Senate provision is dropped. Either the Senate or the president is going to have to yield, or the intelligence community is going to find itself without money.
The White House argues that the Senate provision would infringe on "the president's constitutional authority to protect national security and other privileged information." The argument is disingenuous. The matter has nothing to do with protecting national security; it has to do with concealing government malfeasance and other embarrassments.
The CIA misled everyone
Problems of this sort would not arise if the executive branch responded fully and openly to congressional inquiries in the first place. The Senate was provoked to action this time by a mini-scandal in Guatemala. CIA officials in that country misled not only Congress but also the American embassy and the State Department about their relationship with a Guatemalan military officer who may have been involved in the murder of one American citizen and the Guatemalan husband of another.
A State Department official named Richard A. Nuccio came upon the truth and told then-Rep. (now Sen.) Robert G. Torricelli (D) of New Jersey, a member of the House Intelligence Committee. For rendering this public service, Mr. Nuccio had his security clearance lifted by then-CIA Director John Deutsch, despite the fact that Nuccio worked for State and not the CIA. The Senate Intelligence Committee wants to make sure this kind of reprisal does not happen again.
Although the president is mistaken in opposing the Senate committee provision, he does have a legitimate concern with respect to his authority over executive branch employees, simply from the point of view of maintaining good order and discipline.
The executive branch is already in disarray because of the propensity of government agencies to go off in all directions with scant regard for White House policy. Sometimes these excursions are clearly contrary to the national interest. In the 1950s, Sen. Joseph R. McCarthy (R) of Wisconsin did incalculable damage by distorting personal data leaked to him by disgruntled employees. Nobody wants that to happen again.
Congress not a partner
But the White House weakens its own case by carrying such justified concerns to extremes. It is institutionally indisposed to share information with Congress. It generally does not like to approach Congress about anything until it has a thoroughly coordinated, monolithic position. It does not like individual employees talking to members of Congress until, as officials put it, "we have all our ducks in a row." Congress is regarded not as a constitutional partner in running the government but as an outsider to be persuaded and, if necessary, hoodwinked.
This is why Congress is institutionally skeptical of executive branch statements, especially those that indicate that all is well. And it is why Congress is so furious when it discovers, as it almost always does sooner or later, that it has been deceived or just plain lied to.
From the congressional perspective, withholding information is one of the rawest points of friction in legislative-executive relations. Congressional unhappiness is increased when the information involves the intelligence community. There is a long history of intelligence abuses and scandals stemming from the policy of don't-ask-don't-tell that prevailed for so long. Congress didn't ask, and the CIA didn't tell. Congress still doesn't ask as often or as insistently as it should, but its performance is a good deal better than it was 20 years ago.
In this area, more than in any other, Congress must insist on its right to know. If Congress accepts that the CIA director, with impunity, can lift the security clearance of a government employee (not even a CIA employee) who told Congress the truth when other officials did not, then Congress might as well disband its system of intelligence oversight. In the words of former Sen. Sam Nunn (D) of Georgia in another context, it will become no more than a potted palm.
* Pat M. Holt, former chief of staff of the Senate Foreign Relations Committee, writes on foreign affairs from Washington.