1994 Congressional Hearings
Intelligence and Security

Secret Funding and the `Statement and Account' Clause: Constitutional and Policy Implications of Public Disclosure of an Aggregate Budget for Intelligence and Intelligence-Related Activities



Mr. Chairman, it is a pleasure to be here this afternoon to provide testimony on the constitutional implications of authorizing and appropriating funds for intelligence operations without making the aggregate amount of those funds public. It is a particular pleasure to see you again, Mr. Chairman, whom I have not seen since our work together nearly a decade ago in getting the U.S. Institute of Peace off the ground. I am also pleased to join my old friend Dr. Lou Fisher--who has done landmark scholarship in these areas--and to have a chance to listen to Dr. George Carver, whose work has influenced my own thinking for more than two decades.

I understand that the Committee is considering a proposal that has been around in one form or other for many years to make public the aggregate sum of money appropriated for the various agencies of the Intelligence Community--money which has for nearly half a century been concealed, if public accounts are to be believed, 1

largely within the budget of the Department of Defense.

1 Footnotes at the end of article.

This practice was authorized by Public Law 81-110, the Central Intelligence Agency Act of 1949, section 5 of which authorizes the Agency to `receive from other Government agencies such sums as may be approved by the Bureau of the Budget [now OMB]' for the performance of authorized functions, and also authorizes `any other Government agency . . . to transfer to . . . the Agency such sums without regard to any provisions of law limiting or prohibiting transfers between appropriations.' 2 It is perhaps worth noting that this process was agreed to in 1949 by voice vote in the Senate and by a vote of 348 to 4 in the House--with only a single Member of either House speaking in opposition. 3

Members of this Committee will know the current mechanics of this process far better than I do, but it is my understanding that the precise amounts authorized and appropriated for the Intelligence Community are normally known only to the two intelligence committees and select members of the appropriations committees. I am working from the understanding that all fund provided to the Intelligence Community from the federal treasury have, in fact, been appropriated by law and that the process itself is not contrary to any statute. Thus, the issue I am prepared to address is not whether Congress has agreed to the current funding process; but rather, whether that congressionally established process complies with the requirements of the Constitution.

I do not have a sense that the large majority of Americans are upset at the realization that our government keeps many facts concerning intelligence agencies and their work secret--indeed, I suspect a scientific poll would reveal that most Americans would share my own personal preference that such matters ought not to be made public if there is any reasonable likelihood their disclosure will compromise sensitive sources or methods or in any other manner undermine our security or benefit our nation's enemies. 4

This expectation is predicated upon the assumption that the current practice is consistent with the Constitution; for, if the question were worded `should the Constitution be obeyed,' the answer would presumably also be a strong affirmative. So it seems to me that, in deciding whether to change the status quo, the Committee has a two-stage process to undertake:

First, you need to ascertain whether the Constitution requires the publication of the aggregate annual budget for intelligence and intelligence-related activities (or perhaps even a more detailed accounting of those appropriations); and, if the answer is yes, you need to make those figures public.

If the answer to the constitutional question is no, it would seem wise to undertake a thorough policy review to decide whether such figures should nevertheless be made public--and, if so under what constraints or guidelines.

While I understand that my role here this afternoon is to help you answer the first question, with your permission I will also comment briefly upon the broader policy issues.

The Constitutional Issues

[Page: H4978]

Article 1, Section 9, clause 7 of the Constitution provides:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Many respected individuals and groups have concluded on the basis of this language that it is unconstitutional for the Congress not to publish at least the aggregate sum of appropriations for the Intelligence Community. 5 I shall address that issue, but with your permission I would propose to first place the issue in the context of the Founding Fathers' attitude toward secrecy in the areas of foreign intercourse and intelligence. I believe there is a great deal of misunderstanding on this point that may confuse this important debate.


There seems to be a common assumption that the Founding Fathers viewed secrecy in government as a terrible evil, a practice quite incompatible with democratic theory. While it is true that they believed that an informed public was essential to democratic government, 6 they were practical men who recognized that intelligence and national security matters often had to be kept secret--not only from the American people, but even from their elected representatives in Congress.


The obvious inability of legislative bodies to manage the details of foreign intercourse led the Continental Congress to establish a `Committee of Secret Correspondence' on 29 November 1775. 7 Two weeks later, the Committee dispatched Thomas Story as a secret messenger to France, Holland, and England, with instructions to make contact with a network of unofficial `secret agents' serving the United States in foreign capitals--people like Silas Deane in France and Arthur Lee in England.

After meeting with Lee, Story returned to America and gave this report to the Committee, as recorded in a memorandum dated 1 October 1776 found among the Committee's official papers:

`On my leaving London, Arthur Lee, Esq., requested me to inform the Committee of [Secret] Correspondence that he had had several conferences with the French Ambassador, who had communicated the same to the French court; that in consequence thereof the Duke de Vergennes had sent a gentleman to Mr. Lee, who informed him that the French Court could not think of entering into a war with England, but that they would assist America by sending from Holland this fall two hundred thousand pounds sterling worth of arms and ammunition to St. Eustatius, Martinico, or Cape Franc AE9ois. That application was to be made to the Governours or Commandants of those places by inquiring for Monsieur Hortalez, and that on persons properly authorized applying, the above articles would be delivered to them.' 8

This may arguably have been the very first `covert operation' to which the United States was a party, and the secret offer of ╦200,000 worth of arms was welcome news in America. But it was also recognized as highly sensitive news, and for that reason Benjamin Franklin and the members of the small committee he chaired agreed without dissent that it could not be shared with their colleagues in the Congress. Their memorandum explains:

`The above intelligence was communicated to the subscribers [Franklin and Robert Morris], being the only two members of the Committee of Secret Correspondence now in the city, and our considering the nature and importance of it, we agree in opinion that it is our indispensable duty to keep it secret even from Congress, for the following reasons:

`First, Should it get to the ears of our enemies at New-York, they would undoubtedly take measures to intercept the supplies, and thereby deprive us not only of those succours, but of others expected by the same route.

`Second, as the Court of France have taken measures to negotiate this loan of succour in the most cautious and secret manner, should we divulge it immediately, we may not only lose the present benefit, but also render that Court cautious of any further connection with such unguarded people, and prevent their granting other loans and assistance that we stand in need of, and have directed Mr. Deane to ask of them. For it appears from our intelligence they are not disposed to enter into an immediate war with Britain, although disposed to support us in our contest with them. We therefore think it our duty to cultivate their favourable disposition towards us, draw from them all the support we can, and in the end their private aid must assist to establish peace, or inevitably draw them in as parties to the war.

`Third, We find by fatal experience that Congress consists of too many members to keep secrets. . . . [Emphasis added.]' 9

The memorandum contained the written endorsements of Richard Henry Lee and William Hooper, to whom it had been shown some days later, with the notation that Lee `concur[red] heartily' and Hooper `sincerely approve[d]' of its contents. 10


One of the criticisms of American government under the Articles of Confederation was that all functions of government were entrusted to the Congress, which tended to micromanage military and diplomatic affairs and could not keep secrets. Robert R. Livingston agreed to serve as `Secretary of the United States of America for the Department of Foreign Affairs' in February 1782, but by the end of the year he had submitted his resignation in frustration. Nearly two years passed before John Jay was chosen his successor as the `agent' of Congress in diplomatic intercourse; and he, too, was quickly frustrated by such things as the demand of Congress to receive every proposal submitted by the Spanish Charge during treaty negotiations. 11

Jay was particularly frustrated by the demands by Congress--which, in the absence of any `executive' organ of government, had exclusive control over war, treaties, and other aspects of the nation's foreign intercourse--for access to confidential information and
diplomatic letter. Professor Henry Wriston, in his classic 1929 study, Executive Agents in American Foreign Relations, explains:

It is interesting, in connection with the submission of Lafayette's letters to Congress, to observe that Jay regarded this as a serious limitation upon the value of the correspondence. Congress never could keep any matter strictly confidential; someone always babbled. `The circumstances must undoubtedly be of a great restraint on those public and private characters from whom you would otherwise obtain useful hints and information. I for my part have long experienced the inconvenience of it, and in some instances very sensibly.' [Emphasis added.] 12

These frustrations were widely shared, and Jay went on to play a key role both in explaining the Constitution as a co-author of the Federalist Papers and in interpreting it as the nation's first Chief Justice. He took on the issues of secrecy and intelligence squarely in Federalist essay number 64, explaining the benefits of entrusting matters requiring secrecy to the Executive while requiring the approval of two-thirds of the Senate before the President could ratify a completed treaty:

There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the president, but who would not confide in that of the senate, and still less in that of a large popular assembly. The convention have done well therefore in so disposing of the power of making treaties, that although the president must in forming them act by the advice and consent of the senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest. 13

Jay added, with an allusion to the shortcomings of the Articles of Confederation: `So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective if no attention had been paid to those objects.' 14

[Page: H4979]


Further contemporary insight into the Founding Fathers' perception that Congress could not keep secrets is found in an informal note made by our first Secretary of State, Thomas Jefferson. Beginning during his service in this capacity, Jefferson made various `notes'--what he called `passing transactions'--to assist his memory. These he later combined into three volumes which we today know as The Anas. The following entry is instructive:

April 9th, 1792. The President had wished to redeem our captives at Algiers, and to make peace with them on paying an annual tribute. The Senate were willing to approve this, but unwilling to have the lower House applied to previously to furnish the money; they wished the President to take the money from the treasury, or open a loan for it. . . . They said . . . that if the particular sum was voted by the Representatives, it would not be a secret. The President had no confidence in the secresy of the Senate, and did not choose to take money from the treasury or to borrow. But he agreed
he would enter into provisional treaties with the Algerines, not to be binding on us till ratified here. [Emphasis added.] 15

Mr. Chairman, this is an important, if largely forgotten, part of our history. However, in the interest of time, I will mention but one further example of the Founding Fathers' recognition of the value of secrecy: and what example could be more fitting than the Constitutional Convention itself.


On 29 May 1787, the fourth day of deliberation, 16 the Constitutional Convention adopted a series of rules as part of the Standing Orders of the House. Rules three through five provided:

That no copy be taken of any entry on the journal during the sitting of the House without the leave of the House.

That members only be permitted to inspect the journal.

That nothing spoken in the House be printed, or otherwise published, or communicated without leave. 17

The great constitutional historian Clinton Rossiter has described this `so-called secrecy rule' as `the most critical decision of a procedural nature the Convention was ever to make,' and notes that `in later years, Madison insisted that `no Constitution would ever have been adopted by the convention if the debates had been public.' 18 Indeed, at his insistence, Madison's own important Notes on the convention were not published until 1840, four years after his death and more than half a century after the convention had ended. 19

Because the debates of the convention were held in secret, and Madison's Notes were thus not available to the people when they ratified the Constitution, such influential contemporary records as the Federalist Papers and state ratification convention debates probably deserve greater weight in interpreting the document as it was understood by the sovereign American people when it was ratified. Nevertheless, Madison's Notes do provide important details about the give-and-take that produced the constitutional text, and they are certainly worthy of study. The entire debate on this issue occupies approximately one page of the hundreds of pages devoted by Madison to the convention proceedings. It occurred only three days before the end of the debate, seemingly as an afterthought, on Friday, 14 September 1787:

Col. [George] Mason moved a clause requiring `that an Account of the public expenditures should be annually published' Mr. Gerry 2ded the motion.

Mr. Govr. Morris urged that this wd. be impossible in many cases.

Mr. King remarked, that the term expenditures went to every minute shilling. This would be impracticable. Congs. might indeed make a monthly publication, but it would be in such general statements as woud afford no satisfactory information.

Mr. Madison proposed to strike out `annually' from the motion & insert `from time to time,' which would enjoin the duty of frequent publications and leave enough to the discretion of the Legislature. Require too much and the difficulty will beget a habit of doing nothing. The articles of Confederation require halfyearly publications on this subject. A punctual compliance being often impossible, the practice has ceased altogether.

Mr. Wilson 2ded & supported the motion. Many operations of finance cannot be properly published at certain times.

Mr. Pinkney was in favor of the motion.

Mr. Fitzimmons. It is absolutely impossible to publish expenditures in the full extent of the term.

Mr. Sherman thought `from time to time' the best rule to be given.

`Annual' was struck out--& those words--inserted nem: con:

The motion of Col: Mason so amended was then agreed to nem: con: and added after--`appropriations by law' as follows--`And a regular statement and account of the receipts & expenditures of all public money shall be published from time to time.' 20

It is perhaps worth noting that the issue of `secrecy' had arisen earlier that same day with respect to publishing the journal of each House of Congress, 21 and the statements by Gouverneur Morris (annual publication would be `impossible in many cases'), Madison (on the need for legislative discretion), James Wilson (`Many operations of finance cannot be properly published at certain times')--and others who supported Madison's amendment--may have been made with this concern in mind.

That the need to protect certain secret expenditures was, in fact, a primary underlying rationale for the decision to give Congress discretion as to what expenditures could be made public, and when, becomes clearer from a reading of the debates in the state ratification conventions--especially in the Virginia Convention, where both Mason and Madison were present to revisit the original debate. Colonel Mason took a second bite at the apple during the Virginia Convention, arguing on 17 June 1788 that `the loose expression of `publication from time to time,' was applicable to any time. It was equally applicable to monthly and septennial periods.' 22 He then explained:

The reason urged in favor of this ambiguous expression, was, that there might be some mattes which might require secrecy.

In matters relative to military operations, and foreign negotiations, secrecy was necessary sometimes. But he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money. But that this expression was so loose, it might be concealed forever from them, and might afford opportunities of misapplying the public money, and sheltering those who did it. He concluded it to be as exceptionable as any clause in so few words could be. [Emphasis added.] 23

As had been the case in Philadelphia, Mason lost this debate. But, by raising the issue again, this time in public debate, he made a useful contribution to our understanding of the `original intent' behind this clause. We now know that the reason Congress was given this discretion was to protect `matters which might require secrecy,' that Mason acknowledged that secrecy was sometimes necessary in military and diplomatic matters, and that--even after he warned that this `ambiguous' language might allow Congress to keep some secret expenditures `concealed forever'--Mason's colleagues at the Virginia convention were not persuaded to strengthen the clause and deny Congress this discretion.


Of particular value in trying to understand the original constitutional scheme are the acts of the First Congress, elected in early 1789. Two-thirds of its twenty-two senators and fifty-nine representatives had either been members of the Philadelphia Convention of 1787 or of state ratifying conventions, and only seven of them had opposed ratification. Therefore, their actions are entitled to special weight. As Chief Justice Marshall observed in 1821, in trying to determine the intent of the Founding Fathers `[g]reat weight has always been attached, and very rightly attached, to contemporaneous exposition.' 24

It is therefore noteworthy that the First Congress appropriated a `contingent fund' of $40,000--a considerable sum at the time 25 --for the President to use for special diplomatic agents and other sensitive foreign affairs needs. The statute expressly provided:

`The President shall account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify.' 26

Note the language here--the President was not required to account to Congress `under injunction of secrecy' for sensitive expenditures, he was required simply to inform Congress of the sums expended so that the fund could be replenished as necessary. Congress was not to be told the details, as the Founding Fathers had learned first hand the harm that could be done by `leaks.'

It is perhaps worth noting that the contingent account was not only replenished, within three years it was increased to the level of one million dollars--much of it reportedly was used for such expenditures as bribing foreign officials and ransoming hostages. 27

In this era of Boland Amendments and massive appropriations bills packed with `conditions' it may be difficult to realize that the Founding Fathers envisioned something quite different; but it is important, from time to time, to remind ourselves of the original plan. In an 1804 letter to Secretary of the Treasury Albert Gallatin, President Thomas Jefferson summarized the practice during the nation's first fifteen years:

`The Constitution has made the Executive the organ for managing our intercourse with foreign nations. . . . The Executive being thus charged with the foreign intercourse, no law has undertaken to prescribe its specific duties. . . . [I]t has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the president.' 28

When Jefferson used his contingent account to fund a paramilitary army of Greek and Arab mercenaries to invade Tripoli and pressure its Bey to surrender American hostages, no one seems to have complained that Congress was not informed in advance of the operation. 29 Jefferson's successor, James Madison--a man of some familiarity with the meaning of the Constitution and its `Statement and Account' clause--found that he needed additional funds to underwrite a covert action to gain control over disputed territory between Georgia and Spanish Florida in 1811, so he asked Congress to enact a `secret appropriation' of $100,000 for that purpose. The need for secrecy having passed, the secret appropriation was discretely made public years later, in 1818. 30

The modern practice arguably dates back to 1941, 31 but official congressional sanction was provided by the Central Intelligence Act of 1949. 32 Over the years a variety of efforts have been made to change the practice, without success. 33 The political forces behind the current effort are considerable--but so much of the rhetoric is premised upon
the need to `obey the Constitution' that it is difficult to gave the sentiment on policy grounds alone.

In reality, these constitutional concerns are ill founded. The record behind Article 1, Section 9, clause 7 of the Constitution--whether viewed on the basis of `original intent' or with the gloss of historic practice--clearly establishes that Congress is not required to publish either an aggregate figure of the money it makes available to the Intelligence Community or a more detailed accounting at this time. All of these sums, I gather, have been taken from the Treasury `in consequence of appropriations made by law'--and most apparently have been identified already in broad terms to the public as appropriations for purposes of national security or national defense.

James Mason, to be sure, objected to the argument that the need for `secrecy' required that Congress be left with discretion in this area; but in both the federal and state conventions he made his case and failed to carry the day. The First Congress appropriated a contingent fund for which the President did not even have to disclose his expenditures to Congress; and Madison himself--the `father' of our Constitution and the author of the successful amendment to the `Statement and Account' clause--sought and received a `secret appropriation' that was not revealed to the public for many years.

[Page: H4980]


Any remaining doubts which might exist should be put to rest by a review of the handling of this issue by federal courts. The issue came before the Supreme Court in United States v. Richardson, 34 but the Court found it unnecessary to reach the merits because the Complainant lacked standing. However, in the course of his majority opinion, Chief Justice Burger reasoned in a footnote:

`Although we need not reach or decide precisely what is meant by `a regular Statement and Account,' it is clear that Congress has plenary power to exact any reporting and accounting it considers appropriate in the public interest. . . . While the available evidence is neither qualitatively nor quantitatively conclusive, historical analysis of the genesis of cl. 7 suggests that it was intended to permit some degree of secrecy of governmental operations. . . .

`Not controlling, but surely not unimportant, are nearly two centuries of acceptance of a reading of cl. 7 as vesting in Congress plenary power to spell out the details of precisely when and with what specificity Executive agencies must report the expenditures of appropriated funds and to exempt certain secret activities from comprehensive public reporting.' [Emphasis added.] 35

Even more significant is the District of Columbia Circuit Court of Appeal's 1980 decision in Halperin v. Central Intelligence Agency, 36 a very useful case for which we are indebted to Mr. Stern's predecessor at the ACLU, my litigious friend Morton Halperin. Following the Supreme Court's holding in Richardson, the D.C. Circuit affirmed the District Court's summary judgment in favor of the CIA. But it went further, addressing the case on the merits, and holding in the alternative that `Congress and the President have discretion, not reviewable by the courts, to require secrecy for expenditures of the type involved in this case.' 37

The Halperin court engaged in a detailed review of Madison's Notes and the state convention debates, concluding that: `Madison's language strongly indicates that he believed that the Statement and Account Clause, following his amendment, would allow government authorities ample discretion to withhold some expenditure items which require
secrecy.' 38 While noting George Mason's argument that `he did not conceive that the receipts and expenditures of the public money ought ever to be concealed,' 39 the court concluded:

`But the Statement and Account Clause, as adopted and ratified, incorporates the view not of Mason, but rather of his opponents, who desired discretionary secrecy for the expenditures as well as the related operations. . . .

`Viewed as a whole, the debates in the Constitutional Convention and the Virginia ratifying convention convey a very strong impression that the Framers of the Statement and Account Clause intended it to allow discretion to Congress and the President to preserve secrecy for expenditures related to military operations and foreign negotiations. Opponents of the `from time to time' provision, it is clear, spoke of precisely this effect from its enactment. We have no record of any statements from supporters of the Statement and Account Clause indicating an intent to require disclosure of such expenditures.' 40

Since the Supreme Court elected not to address the issue on the merits in Richardson, the Halperin case remains the authoritative judicial interpretation on this subject.


Finally, Mr. Chairman, although I have not seen it, I understand that Attorney General Griffin Bell was asked by President Carter to consider this issue in depth and to prepare an opinion for the President. He concluding that the current Intelligence Community funding practices are not in conflict with the Constitution. 41


Mr. Chairman, I believe that the text of the Constitution, the clear intentions of the Founding Fathers, and more than two centuries of consistent practice, support the conclusion that the current practice of concealing appropriations for intelligence activities in the budgets of other agencies is constitutional. As I have indicated, that conclusion has the support of the D.C. Circuit Court of Appeals, and, I am informed, of the Office of the Attorney General. I believe you may rest comfortably on this point, and the only reasons for departing from traditional disclosure practice would be of a policy nature. At this time I would like to turn briefly to some of those considerations.


Perhaps first of all, in a free society there ought to be a presumption in favor of openness and the diffusion of knowledge and information. This may reflect my parochial prejudices as a product of Mr. Jefferson's University, but I am reminded both of his caution against trying to remain `ignorant and free,' 42 and more directly his statement that the University of Virginia would be `based on the illimitable freedom of the human mind,' and would not be `afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.' 43


Having said that, I would argue that the most compelling arguments to overcome that presumption of openness are those legitimately based upon the security of the nation. As John Jay noted in Federalist No. 3, `Among the many objects to which a wise and free
people find it necessary to direct their attention, that of providing for their safety seems to be the first.' 44 Similarly, the Supreme Court noted in Haig v. Agee that `it is `obvious and unarguable' that no governmental interest is more compelling than the security of the Nation.' 45


In addition, I urge you to recognize that the management of intelligence matters was recognized by the Founding Fathers to be at the core of the President's responsibilities; and, toward this end, I would urge you not to decide to disclose these figures if the President asks that they be kept confidential. To do otherwise would depart from two centuries of precedent. I don't know the preferences of the current Administration on this issue, but I urge you to give them the weight that comity among the branches would warrant.


Ultimately, if the President does not object, I would suggest that you apply a balancing test in reaching your decision. You are entertaining a motion to depart from a practice dating back in some respects to the earliest days of our country, and in others to the creation of the agencies you are charged with overseeing. The proponents of change ought to be expected to justify a departure from these well-established practices--and their constitutional arguments are unpersuasive.

Ask yourselves first, what real benefit to the American people or our system of government will likely result from disclosing the aggregate intelligence budget. How meaningful will this one figure be to our citizens? Presumably the sums are already disclosed under the broad `National Defense' budgetary category. Will any identifiable good be served by publicly identifying a portion of that larger sum as being earmarked for `intelligence and intelligence-related activities?' Would the result of these efforts not be, to borrow from the argument Rufus King made in objecting to a mandatory annual statements, `such general statements as would afford no satisfactory information.' 46


You can be certain that releasing a single, aggregate figure will not satisfy those who are demanding meaningful information about the Intelligence Community. In 1974 a student note in the New York University Journal of International Law and Politics, for example, concluded that `Not only may the Constitution mandate the reporting of CIA expenditures to Congress as a whole, but it may even require publication of the CIA budget.' 47 Similarly, a 1975 note in the Yale Law Journal argued that `Even a lump-sum appropriation and disclosure would prevent both Congress and the public from fixing or analyzing internal priorities within the CIA; it would also be impossible to determine if there has been waste, corruption, or spending prohibited by statute or by the Constitution.' 48 The observation would seem sound, and once you start releasing details it will probably become more difficult to draw any bright lines. Ultimately, the very existence of a separate intelligence committee may be called into doubt as your colleagues and the critics demand more and more details and become frustrated with your inexplicably selective cooperation.

[Page: H4981]


It strikes me that the most likely result of such a disclosure from the standpoint of the American taxpayer is that this large chunk of money will become highly vulnerable to attack as the budgetary belt is tightened. While Americans may overwhelmingly favor having an effective intelligence service and a strong defense establishment, when it comes down to your being pressured to cut jobs and benefits programs in your districts or taking a few million here and there from this gross `intelligence' account--money which will have little clearly identifiable short-term benefits to constituent groups--the intelligence budget is going to be placed at risk.

And then, I suspect, you are going to be asked to `justify' such a large budget--and you are either going to have to start `telling secrets' or you will face amendments to cut your aggregate budget by 2% here and 3% there so the money can go for health care, education, and other special interests that have far more extensive and effective PR operations than do the agencies you are charged with overseeing. I don't think any of us want to have the CIA or NSA `propagandizing' the American voters to pressure Congress for adequate funding; and because of that handicap I suggest that you have a special responsibility to the American people not to allow their intelligence services to be compromised in order to appease more politically powerful special interest groups.

Candidly, I don't see much in the way of identifiable benefits from disclosing the current aggregate Intelligence Community budget. Perhaps they are there--but the burden of proof ought to be placed upon those who are advocating the change.


This is not to say, however, that these figures ought to remain perpetual secrets. On the contrary, I can think of no reason why the sums made available to the Central Intelligence Agency and other components of the Intelligence Community in the 1940s, 1950, and 1960s ought not be made public at this time (if that has not already been done). I don't know whether the delay ought to be three decades, two decades, or even less--but I would be inclined to defer to the judgment of the President and the DCI in making such a policy decision.


Finally, if you can identify genuine benefits to the American people of disclosing this information, you need to ask what harm might reasonably be foreseen to result from such a change--and to weight any such harm against the perceived benefits. Perhaps I am in the minority today, but I believe that when the security of the nation may be at stake we ought to act with a presumption of caution and secrecy. The fact that the rest of the world follows that practice is not proof of its wisdom--but it should give us justification to pause, at least briefly, before moving off in a radically new direction.

Some experts have argued what has been called the `conspicuous bump theory'--suggesting that a foreign intelligence service might be able to confirm the existence of an expensive new program or technology by spotting a change in the CIA or Intelligence Community budget. Former DCI William Colby--a man of great wisdom and integrity, who has decades of relevant experience on which to judge--has suggested that the introduction of the U-2 program produced just such a `bump' in our budget. 49

I am not privy to the future plans of the Intelligence Community or the current details of its budget, and I can certainly not identify any particular development that might be compromised by publishing an aggregate figure--but I can certainly conceive of such a development. Indeed, I can conceive of a decision of such a development. Indeed, I can conceive of a decision by the United States to curtail intelligence spending dramatically--requiring the termination of programs in many Third World countries--and I can project that public release of figures showing a dramatic drop in funding might well lead a potentially hostile foreign leader to conclude that he no longer needed to abide by his NPT commitments because the Americans no longer had adequate resources to keep good track of his activities.


The business of intelligence gathering is in many respects much like putting together a jig-saw puzzle. If you are looking at the United States, you certainly want to subscribe to the Congressional Record and Aviation Week & Space Technology, and also to attend scientific conferences and carefully review the latest Statistical Abstract and some of the thousands of other government publications that might reveal some of the many pieces to the puzzle. When you see areas where you are missing key pieces, perhaps you pay off a secretary, seduce a file clerk, break in to a hotel room while an international conference is in session to rifle a briefcase or two, and perhaps eavesdrop on a few million telephone calls. Much of your efforts are fruitless, but more and more of the puzzle falls into place as each week goes by. The ones that remain `critically important' are the ones you do not have.

That makes the counter-intelligence function a difficult one; because, without knowing what pieces of the puzzle one's adversaries have already acquired, it is virtually impossible to identify any size piece as being `vital' to U.S. security interests. And yet, quite possibly, almost any single piece of the puzzle could be the critical part that allows our enemies to break an important code and do us harm. Thus, the tradition has developed that the intelligence business ought, even in a democracy, be cloaked in a web of secrecy.

Over the years, this Committee and your Senate counterpart have taken testimony from a number of former DCIs and other experts asking what specific harm they could identify that would result from disclosing the aggregate intelligence budget. Many, if not most, of them, I gather, have said they could not point to clearly identifiable harm. Others have urged you not to make the figures public.

I wonder if it might have been useful to ask them another question. Ask them how much they would pay to have the annual aggregate intelligence budget figures for countries like the former Soviet Union, Cuba, Libya, Iran, Iraq, or North Korea. Would these figures be of interest to them? Might the trends in these figures over a decade or more be helpful to them? If they say `no,' then I would be less concerned.


Mr. Chairman, let me close with the observation that this is an important issue. Other than making us feel good--a byproduct, perhaps, of the strange but all too prevalent belief that keeping secrets from our nation's enemies is somehow `un-American,' `dirty,' or even `evil'--I don't believe that publishing the aggregate intelligence budget is going to benefit very many Americans. It may make a few super hawks feel relieved that we are throwing enough money at the problem, 50 I suspect Oliver Stone and others who believe that the United States is an evil force in the world may buy a few extra cases of Malox, and some of your constituents may even accept the allegation that you will have somehow `saved the Constitution' 51 by passing such a disclosure requirement. But most Americans
simply don't know enough about the Intelligence business, about how this money is actually being spent, to be able to evaluate a figure presumably in the tens of billions of dollars.

The most likely consequence of publishing an unsupported aggregate figure is that it will become a sitting duck for colleagues seeking accounts to cut in order to satisfy the demands of special interest constituent groups without further adding to the deficit. You will then be forced to choose between further breaking down the intelligence budget--and then being asked, at minimum, to provide public justification for any future increases--or watching the very important sum of money you are charged with overseeing ripped apart as some of your colleagues go on a feeding frenzy. Members of Congress who do not understand the important business of intelligence--and, equally importantly, who know that this large account can't be publicly defended without disclosing details that its champions will not wish to reveal to our nation's enemies--are likely to argue that their pet `pork' project can easily be funded by just taking a few hundred thousand dollars from this vast `intelligence' account--charging the DCI with finding a little more `fat' to trim from his presumably bloated bureaucracy. It could give a whole new meaning to the term `graymail'--defend your budget on the merits in public by compromising secrets, or watch large chunks of it vanish before your eyes.

The Intelligence Community could easily suffer the fate of the prized sausage the fabled German butcher is said to have left displayed unguarded on his counter while he swept out one afternoon. He returned to find that a tiny slice had been taken while he was away; but, noting its small size, he concluded it really didn't matter all that much. An hours later, when he returned from his storeroom, he found another piece was gone. This continued for several days. Each missing slice, after all, was quite modest in size and could hardly be said to have destroyed the value of the whole. Little by little, the prized sausage vanished. Pretty soon, only a small piece of string was left--and that wasn't worth fighting for either.

In a very real sense, the Intelligence Community budget is as defenseless as the sausage in the fable. We don't want the CIA `propagandizing' the public to pressure Congress for additional funds, and we know they can't discuss the important details of their work without harming their effectiveness even if they wanted to do so. They provide `services' to Americans of incalculable value, by helping to keep the world peaceful and identifying threats to our security sufficiently early that we can address them without having to expend the lives of our young men and women in uniform.

Thanks to our Intelligence Community, we learned about the existence of Soviet missiles in Cuba in 1962, and about dangerous nuclear weapons and ballistic missile threats from North Korea three decades later. Each of you could probably add numerous other examples, because you have been entrusted with special access to information that must be denied to the rest of us. But, when the sharks come, you will be precluded by your promise of secrecy from mentioning those examples in public debate. How can you possibly expect to convince your colleagues not to earmark a couple of hundred thousand dollars for a new public building to honor the beloved Tip O'Neil, a few million dollars for a powerful committee chairman's favorite hospital--perhaps to fund some promising AIDS research--or perhaps to pay for the unanticipated earthquake relief needs in Los Angeles?

It would not surprise me if some of your constituents would vote to shut down the entire Intelligence Community if the money saved could rescue one small child trapped in a well, to ease the suffering on a pediatric cancer ward, or to take a real `bite' out of crime. After all, the Cold War is over--and many Americans couldn't find North Korea on a map without great effort. One of the nice things about being outside the policy process is that
most Americans don't have to worry about long-term strategic solvency or the risks that lurk around the corner in an increasingly complex and not yet safe world. They elected you to represent them in deciding how to allocate the nation's limited resources, and in this regard I would remind you of the famous 1774 speech to the Electors of Bristol, in which Edmund Burke observed: `Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.'

Because of your membership on this important Committee, you have a special duty--not only to the constituents in your individual districts, but to all of the American people--to oversee and pass judgment upon the work of the Intelligence Community. This system has worked well, in general, by having your colleagues rely upon you to make recommendations based upon the special information to which you are given access. Most of your colleagues hesitate to second-guess your judgments, because they know they lack your expertise. Simply gratuitously tossing out an aggregate budget sum--a figure presumably in the tens of billions of dollars--may well break some of the mystique that has helped guard these critically important funds from the sharks in the past.

As I have said, the potential consequences are great. Imagine the lives that might have been saved had we been able to prevent the Pearl Harbor surprise attack. Consider what might have happened had we not learned of the Soviet nuclear missiles in Cuba. How many more Americans might have died in the gulf during Operation Desert Storm had it not been for the information we were able to gain from our overhead platforms?

Information provided by the American Intelligence Community reportedly helped to convince the International Atomic Energy Agency that North Korea was violating its treaty commitments under the NPT--and that may allow us to avoid a nuclear confrontation in East Asia that could either engulf U.S. forces in South Korea or, in the alternative, provoke Japan to become a nuclear weapons State and undermine the Nuclear Non-Proliferation Treaty. As we meet here today, American intelligence assets are presumably monitoring the efforts by Libya to build new poison gas facilities that could fuel further terrorism and undermine our interests and the cause of peace in the coming years.

Mr. Chairman, the job which you and your colleagues on this Committee have accepted is not an easy one. Today, the American people are still rejoicing at the end of the Cold War. They are turning inward, looking for `peace dividends.' But you have a greater responsibility than simply pandering to their short-term desires. You must decide what national resources ought to be allocated to the intelligence functions, and then you must try to protect those funds in a very competitive budget process.

If you err, and the nation is left unprotected, American soldiers may well pay with their lives for your frugality. The stakes in this game are high: they are measured in human lives and individual freedom. In this regard, you may wish to keep in mind that the American people are not very forgiving when their elected representatives fail in their duty to protect the nation's security--even when their actions are initially fully in accord with the public opinion polls. Few of the isolationists who tied President Roosevelt's hands in the 1930s in the name of `peace' and `neutrality' survived the elections following Pearl Harbor, an event which itself might have been prevented by a serious national intelligence collection effort. 52

In the backlash to Watergate and Vietnam two decades ago, the American public turned against the Intelligence Community--egged on, I would add, by irresponsible charges from the Hill that the CIA had become a `rogue elephant.' 53 Our elected representatives responded by cutting back on funding and reducing intelligence assets in several areas--in particular we reduced money for HUMINT in such `unimportant' areas
as El Salvador. I need not emphasize that by 1981 that cutback had proven to be a costly mistake--both in terms of undermining our efforts to assist a neighbor resist an externally-supported Leninist insurgency and our campaign for important human rights objectives.

When Iranian militants seized American hostages in Tehran in 1979, the American people wanted quick action. Support for the CIA shot up dramatically in the polls. Some of the reductions that had been made in the mid-seventies seemed hard to explain, and the voters turned out an administration in Washington that had, for the most part, been very much in tune with the neo-isolationist sentiments of the Nation prior to the `wake up call' from the Ayatollah Khomeini

The Cold War is now over, but, if anything, the world is a far more complex reality than was the case when Moscow held the strings to many of its problem children. The existence of radical regimes like those in North Korea, Iraq, Iran, Libya, the Sudan--to name a few--combined with the growth of ultra nationalism in Eastern Europe, the growing threat of proliferation of weapons of mass destruction, and our own obvious vulnerability to international terrorism, make it more important than ever for us to have a strong and effective Intelligence Community. Human lives are at stake in the decisions you make--not only those of our soldiers, but also those of secretaries and office workers who may find themselves in situations like the World Trade Center bombing.

You invited me here to address the rather technical question of whether the Constitution requires the publication of an aggregate budget figure for the Intelligence Community. My answer is that it clearly does not--a view consistent with more than two centuries of established practice, and one shared by the federal judiciary and at least the Carter Administration's Justice Department. In contrast, it is worth noting that in 1977, when your colleagues in the Senate studied this issue and concluded that the aggregate budget should be released, they relied upon three law review articles (all written in the wake of Watergate and the emotions of the Church and Pike Committee investigations) in concluding that `the legal commentators outside the government who have studied this clause and publicly commented have concluded that it requires disclosure of at least an aggregate figure for intelligence activities.' 54 What they did not disclose--and what most of the Senators quite probably did not realize--is that each of the three law review articles were nothing more than `Notes' written by law students. 55

The Constitution clearly does not require you to release current aggregate appropriation figures for the intelligence community at this time. Whether to do so is entirely within the discretion of the Congress. That leaves you with the policy question of whether to publish such a figure for other reasons. For the reasons already stated, I urge you to consider the pros and cons of that issue very carefully before making a decision. I honestly believe it would prove to be a tragic mistake.

Thank you, Mr. Chairman. That concludes my statement.


1 Perhaps the most detailed public account I have seen to date is TIM WEINER, BLANK CHECK: THE PENTAGON'S BLACK BUDGET (1990).

2 50 U.S.C.A. Sec. 403 f (a).

3 Douglas P. Elliott, Cloak and Ledger: Is CIA Funding Constitutional?, 2 HAST. CONST. L. Q. 717, 731-32 (1975).

4 I have not had time to search to see if such polls have been taken, but I recall that during the height of the Gulf War the polls showed overwhelming support for the restrictions placed by the military upon the press.

5 The `Church Committee' concluded `that publication of the aggregate figure for national intelligence would begin to satisfy the Constitutional requirement and would not damage the national security.' Quoted in, SENATE SELECT COMMITTEE ON INTELLIGENCE, REPORT ON WHETHER DISCLOSURE OF FUNDS FOR THE INTELLIGENCE ACTIVITIES OF THE UNITED STATES IS IN THE PUBLIC INTEREST 2 (95th Cong., 1st sess., Sen. Rep't 95-274 (1977). The `Rockefeller Commission' identified this as an issue warranting congressional consideration. COMMISSION ON CIA ACTIVITIES WITHIN THE UNITED STATES, REPORT TO THE PRESIDENT 81 (1975). There have also been several `Notes,' written by law students, reaching this conclusion. See, e.g., Fiscal Oversight of the Central Intelligence Agency: Can Accountability and Confidentiality Coexist?, 7 N.Y.U.J. INT'L L. & POLITICS 493 (1974); The CIA's Secret Funding and the Constitution, 84 YALE L. J. 608 (1975); and Douglas P. Elliott, Cloak and Ledger: Is CIA Funding Constitutional?, 2 HAST. CONST. L. Q. 717 (1975).

6 Presumably every school child is familiar with Jefferson's famous maxim that, `If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.' 14 WRITINGS OF THOMAS JEFFERSON 384 (Mem ed. 1903). Only slightly less popular is Madison's warning that `A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' 9 THE WRITINGS OF JAMES MADISON 103 (Gaillard Hunt, ed. 1910).


8 `Verbal statement of Thomas Story to the Committee,' 2 P. FORCE, AMERICAN ARCHIVES: A DOCUMENTARY HISTORY OF THE NORTH AMERICAN COLONIES, Fifth Series, 818-19 (1837-53). For reasons of readability, I have departed from the practice of italicizing most of the proper nouns followed in the original.

9 Id. at 819.

10 Id.

11 An excellent discussion of this period is contained in HENRY MERRITT WRISTON, EXECUTIVE AGENTS IN AMERICAN FOREIGN RELATIONS 18-22 (1929).

12 Id. at 23. The internal quotation is cited to a letter from Jay to Thomas Jefferson (then Minister to Paris) dated 24 April 1787.

13 The FEDERALIST, No. 64 at 434-35 (Jacob E. Cooke, ed. 1961) (J. Jay) (emphasis added). Jay's contribution to understanding the Constitution in this essay can not be understated. Discussing Jay's subsequent role in explaining the meaning of the Constitution--and, specifically, this essay--University of Washington Professor Arthur Bestor (hardly a champion of strong executive power) has observed: `In this contribution to the Federalist Jay was of course examining the completed Constitution, not offering suggestions to those about to frame it. As an interpretation of the original intent of the document. Jay's essay is of the highest importance. His diplomatic experience commencing with his appointment as minister to Spain in 1779; followed by his participation, as one of the commissioners, in the negotiation of peace with Great Britain; and continuing, from 1784 on, with his service as Secretary of the United States for the department of Foreign Affairs--fitted him better than anyone else to judge the intended effect of the new Constitution both on the actual process of negotiation and on the character of the relationship that would have to be maintained between executive and legislative authorities.' Bestor, Separation of Powers in the Domain of Foreign Affairs, 4 SEATON HALL L. REV. 527, 532-33 (1974). Professor Gordon Baldwin concludes: `John Jay, an experienced attorney and diplomat, suggested that intelligence gathering arrangements are within the sole power of the President. In his view, they are a purely executive function linked to the treaty negotiation process, and the information so gained need not be reported to Congress.' Gordon Baldwin, Congressional Power to Demand Disclosure of Foreign Intelligence Agreements, 3 BROOKLYN J. INT'L L. 1, 17 (1976).

14 Federalist No. 64.

15 The Complete Anas of Thomas Jefferson 72-73 (Franklin B. Sawvel, ed. 1903). This document also appears in 1 The Writings of Thomas Jefferson 191 (Paul Ford, ed., 1892).

16 The Convention was to begin on the second Monday in May (14 May), but a quorum did not arrive until the 25th.

17 1 Max Farrand, The Records of the Federal Convention of 1787 at 15 (1966).

18 Clinton Rossiter, 1787: The Grand Convention 167 (1966).

19 Farrand, The Records of the Federal Convention, supra note 17, at xv.

20 James Madison, 2 `The Journal of the Constitutional Convention,' in 4 The Writings of James Madison 456-57 (Gaillard Hunt, ed. 1903). With only minor changes in punctuation and typography, this same debate appears in 2 Max Farrand, The Records of the Federal Convention of 1787 at 618-19 (1966).

21 4 Writings of James Madison 449-50; 2 Farrand, Records of the Federal Convention 613.

22 3 Farrand, Records of the Federal Convention 326.

23 Id.

24 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 418 (1821).

25 Not being privy to the budgetary figures for the Central Intelligence Agency I can not say with certainty, but I suspect this 1790 appropriation provided the President with a larger portion of the federal budget than is today allocated to the CIA.

26 Act of 1 July 1790, 1 Stat. 129 (1790).

27 Ed Sayle, The Historical Underpinnings of the U.S. Intelligence Community, 1 International Journal of Intelligence and Counterintelligence 9 (1986).

28 11 THE WRITINGS OF THOMAS JEFFERSON 5, 9, 10 (Mem. ed. 1904). For a discussion of Jefferson's theory that the `executive power' clause of Article II, section 1, had vested in the President the entire business of external intercourse save for the expressed grants to Congress and the Senate (such as the power of the Senate to approve nominations and treaties, and the veto given Congress over a decision to initiate an offensive `war')--a view shared by Washington, Hamilton, Jay, Marshall, and others--see ROBERT F. TURNER, REPEALING THE WAR POWERS RESOLUTION: RESTORING THE RULE OF LAW IN U.S. FOREIGN POLICY 47-107 (1991).

29 I discuss this incident in some detail in a forthcoming book.

30 3 Stat. 471 (1818).

31 President Roosevelt appointed `Wild Bill' Donovan as `Coordinator of Information'--which led directly to the OSS and CIA--on 18 June of that year, and funding for the Manhattan Project apparently began around 9 October. See TIM WEINER, BLANK CHECK: THE PENTAGON'S BLACK BUDGET 19, 113 (1990).

32 63 Stat 208, Pub. L. 81-110, codified at 50 U.S.C.A. Sec. 403 et seq.

33 The most noteworthy of these, perhaps, was the effort by the Senate Select Committee on Intelligence to change the practice in 1977. While a majority of the committee voted for that end, the dispute was apparently so heated that no one brought the measure to the floor.

34 418 U.S. 166 (1974).

35 418 U.S. at 178 n.11.

36 629 F.2d 144 (D.C. Cir. 1980). Another useful case from the same circuit is Harrington v. Bush, 553 F.2d. 190 (D.C. Cir. 1977), in which the court rejected on standing grounds a similar challenge brought by a Member of Congress, and in the process concluded with respect to the `regular Statement and Account' clause: `This clause is not self-defining and Congress has plenary power to give meaning to the provision. . . . Since Congressional power is plenary with respect to the definition of the appropriations process and reporting requirements, the legislature is free to establish exceptions to this general framework, as has been done with respect to the CIA.' Id. at 194-95.

37 629 F.2d at 162.

38 Id. at 155.

39 Id.

40 Id. at 156.


42 Quoted supra, note 6.

43 15 The Writings of Thomas Jefferson 303 (Mem. ed. 1903).

44 Federalist No. 3 at 13-14 (Jacob E. Cooke, ed. 1961) (emphasis in original).

45 453 U.S. 280 (1981).

46 See supra, text accompanying note 20.

47 Fiscal Oversight of the Central Intelligence Agency: Can Accountability and Confidentiality Coexist?, 7 N.Y.U. J. Int'l L. & Politics 493, 521 (1974).

48 The CIA's Secret Funding and the Constitution, 84 YALE L. J. 608, 633 n.137 (1975). Keep in mind that the Church Committee said `publication of the aggregate figure . . . would begin to satisfy the Constitutional requirement . . . [emphasis added].' See supra, note 5.

49 Senate Select Committee on Intelligence, Report on Whether Disclosure of Funds for the Intelligence Activities of the United States is In the Public Interest 8.

50 Without further details, no one will be able to make an intelligent judgment about the wisdom of the expenditures contained in the aggregate figure; and I predict that if you do release such a figure you will be forced to break it down further (at least by agency or category) within a few years.

51 If your primary interest is in upholding the Constitution, I can suggest any of a number of measures Congress might take toward that end--such as repealing the 1973 War Powers Resolution, which even Senator George Mitchell admits is unconstitutional, or repealing some of the hundreds of new `legislative vetoes' that have been enacted after the 1983 Supreme Court decision (INS. v. Chadha) declaring such measures to be unconstitutional. See, e.g., Robert F. Turner, Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy (1991).

52 See, e.g., 95 Cong. Rec. 1948 (1949) (remarks by Sen. Tydings), cited in Douglas P. Elliott, Cloak and Ledger: Is CIA Funding Constitutional?, 2 Hast. Const. L.Q. 717, 729 (1975).

53 To be sure, the Intelligence Community engaged in activities that most of us today would consider improper--but even Senator Church ultimately acknowledged that the `rogue elephant' metaphor he coined was inaccurate and the Community has been following instructions from the nation's elected political leaders.

54 Senate Select Committee on Intelligence, Report on Whether Disclosure of Funds for the Intelligence Activities of the United States Is in the Public Interest at 4 n.6.

55 The student Notes in question are cited supra, note 5.