1989-11-30
I have today signed H.R. 2748, the ``Intelligence Authorization Act, Fiscal Year 1990.'' The Act authorizes appropriations at approximately the level contained in my Fiscal Year 1990 budget request for the intelligence and intelligence-related activities of the United States Government during the current fiscal year. The Nation's security depends on intelligence, and secrecy is indispensable if intelligence activities are to succeed. Accordingly, the programs and funding levels for which the Act provides are classified.
Inspectors General render useful and important service in ensuring integrity in Government. I believe that the existing Office of Inspector General has done an able job of performing the functions that H.R. 2748 assigns to the new statutory Inspector General. As a result, I have repeatedly made clear that I am unpersuaded of the necessity for Title VIII of the Act, which establishes a statutory Inspector General at the CIA. A statutory Inspector General could impair the ability of the CIA to collect vitally needed intelligence information by creating a perception that confidentiality cannot be guaranteed. The CIA must be able to assure foreign individuals and organizations that their identities, the fact of their association with the United States, and the information they provide are not subject to exposure.
I nevertheless have signed H.R. 2748 because Title VIII includes three provisions enabling me and the Director of Central Intelligence to minimize the harm Title VIII otherwise would do to the national security and the effectiveness of the CIA. These provisions require the Inspector General to report directly to the Director, under whose general supervision he will operate; permit the Director to prohibit Inspector General investigations if necessary to protect vital national security interests; and require the Inspector General to take due regard for the protection of intelligence sources and methods. We intend vigorously to assert these authorities. Further, I rely on the Congress's assurances in the Joint Explanatory Statement, which indicate that the Congress will not frequently seek access to Inspector General reports. Finally, insofar as Title VIII could be construed to conflict with my authority and responsibility under the Constitution, I shall interpret Title VIII consistently with the Constitution.
In implementing Title VIII the operational policies of the existing Office of Inspector General will remain in force to the maximum extent possible. The Office of the Inspector General will remain a staff function supporting the Director of Central Intelligence; it will not become a line organization. Moreover, the Office of Inspector General should be staffed by individuals knowledgeable and experienced in intelligence operations.
The congressional reporting provisions in Title VIII of the Act are troubling. In particular, the requirement to provide, on demand, inspection, audit, and investigation reports of the statutory Inspector General is a departure from existing law governing statutory Inspectors General in other agencies and departments. The quality of such reports depends on the willingness of Agency employees to be candid during confidential interviews, and the promise of confidentiality would be cast in doubt if these reports are routinely provided to the Congress. Knowing that inspection reports would be given to the Congress also could deter CIA managers and employees from offering conflicting views or innovative suggestions. The value of inspection reports to the Director of Central Intelligence and the Agency, therefore, could diminish.
While the Act admonishes the Inspector General ``to take due regard for the protection of intelligence sources and methods in the preparation of all reports,'' and ``to minimize the disclosure of intelligence sources and methods described in such reports,'' the Director must retain some discretion to protect any sensitive national security information the Inspector General may leave unprotected. In the closely related Inspector General Act, the Congress understood that such reporting requirements cannot be construed to extinguish the executive's constitutional authority to protect certain confidential information.
To ensure that CIA employees continue to communicate candidly with the Inspector General and that the CIA's ability to collect intelligence is not impaired, I expect that the Director of Central Intelligence will exercise his authority, where necessary, to protect sensitive intelligence and confidential Inspector General information and will resist any attempt by the Intelligence Committees to micromanage the CIA through the vehicle of a statutory Inspector General. The Director of Central Intelligence will have my complete support in implementation of Title VIII in a manner that will protect the effectiveness of our intelligence service.
The Act also requires that the Inspector General immediately report to the Intelligence Committees whenever he cannot resolve differences with the Director, when an investigation focuses on the Director or Acting Director, or when the Inspector General cannot obtain significant documentary information in the course of an investigation. In addition to raising concerns about the disclosure of confidential national security information, this provision potentially could undermine the President's authority over the deliberative processes of the executive branch long recognized by the Supreme Court. I therefore shall interpret this and similar provisions consistently with my constitutional authority to withhold information that would compromise national security or the deliberative processes of the executive branch.
In addition to these concerns, provisions regarding appointment and removal of the Inspector General must be carefully construed to avoid constitutional problems. The Act purports to define qualifications that any appointee to the position of Inspector General must satisfy. The Constitution, however, clearly distinguishes the responsibilities of the executive and legislative branches in the appointment of principal officers of the United States: the President enjoys absolute discretion of appointment, subject only to the advice and consent of the Senate. Accordingly, I sign this legislation on the understanding that the limitations on my discretion to appoint the Inspector General are merely advisory.
I also am concerned about the Act's requirement that, on removing the Inspector General from office, the President ``shall immediately communicate in writing to the intelligence committees the reasons for any such removal.'' While this requirement purports to preserve the President's constitutional authority to remove an executive branch subordinate, its obvious effect is to burden its exercise. Accordingly, while I intend to communicate my reasons in the event I remove an Inspector General, I shall do so as a matter of comity rather than statutory obligation.
I have signed H.R. 2748 subject to the understandings set forth above. If these steps do not obviate the potential problems of having a statutory Inspector General at the CIA, I shall ask the Congress to enact remedial legislation.
The Act incorporates a requirement that I obtain prior committee approval before certain funds authorized by this Act may be expended for certain specified activities. While I do not foresee undertaking those activities without committee concurrence, I note that, as a principle of constitutional law, the Congress cannot require me to obtain its prior approval before obligating or expending appropriated funds. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
Finally, I am pleased that the Act contains no new provision concerning notice to the Congress of covert actions. I described how my Administration will take account of congressional concerns with respect to such notice in a letter to Senators Cohen and Boren of October 30, 1989. I stated: ``The statute requires prior notice or, when no prior notice is given, timely notice. I anticipate that in almost all instances, prior notice will be possible. In those rare instances where prior notice is not provided, I anticipate that notice will be provided within a few days. Any withholding beyond this period would be based upon my assertion of the authorities granted this office by the Constitution.''
George Bush
The White House,
November 30, 1989.
Note: H.R. 2748, approved November 30, was assigned Public Law No. 101 - 193.
