AGAINST presidents and their lieutenants determined to conduct dubious and illegal intelligence operations, Congress has now putin place a new set of explicit legislative restraints. These attempt to prevent a repetition of the Executive Branch abuses of secret power that marked the Iran-contra affair. These abuses were of a sort that earlier restraints had been thought sufficient to block. This turned out not to be so. Circumstances have a way of creating presidential or executive temptations, and it is premature to say that secret power will not again be abused. But Congress has made a game try to sharpen its old tools of oversight, and the legislation which has come out of the intelligence committees and that President Bush has now accepted is ready to be put to the test.
The new language focuses on the terms of presidential notice to Congress of covert operations. Not only is there language specifying that notice is required for actions conducted anywhere in the government, not just by the CIA -- a loophole that President Reagan's men used to avoid scrutiny of acts directed by the White House staff. There is also a honing of the requirement for a prior (and written) notice to Congress; and, in the "rare cases" when this is not possible, "timely" notice is called for after the fact, meaning in most cases, as Mr. Bush now acknowledges, "within a few days." True, the president insisted on conditioning his acknowledgment on "authorities granted this office by the Constitution." But he has gone a long way past the Reagan Justice Department's incredible assertion of 1986 that "timely" notice "should be read to leave the president with virtually unfettered discretion to chose the right moment for making the required notification."
Iran-contra spurred this legislative review. The review unfolded, however, as the United States was emerging into a cluttered new global environment dominated for the moment at least by the likes of Saddam Hussein. This meant that Congress was in effect writing rules for the very demanding international conditions of the '90's and beyond. In this period, there will no doubt be a place for covert action, but these measures must be undertaken under strict legal and constitutional controls. "It is important to remember," said the intelligence committee conferees, "that discussion with and advice from the intelligence committees, must, in the case of covert actions, substitute for the public and congressional debate which normally precedes major foreign policy actions of the U.S. government." This is the principle that must guide the practice of covert operations.