Congress Can’t Use the Powers It Has : New Laws Aren’t Needed, but Oversight Can Work Wonders

One crucial and lasting issue frames the entire Iran- contra inquiry: Can Congress responsibly exercise oversight over the executive’s behavior in the making of foreign policy?

Beginning with the War Powers Act of 1973, Congress has legislated a role for itself in the making of foreign policy. That law gave Congress the power to require a President to turn to it for a declaration of war, or else withdraw troops from any hostile or potentially hostile area within 60 days. The War Powers Act was followed by the Hughes-Ryan Amendment of 1974, requiring the President to report to Congress on the CIA’s covert operations, and the Harkin Amendment of 1975, blocking aid to gross and consistent violators of internationally recognized human rights.

Those laws, and subsequent legislative updates and expansions, stake out for Congress considerable powers to co-determine foreign policy with the executive. But what powers has Congress actually shown itself willing and able to exercise? The War Powers Act’s 60-day clock has never once been set ticking; the human-rights laws, numbering well over 50 by now, have actually been used to redirect very little aid, and the CIA controls have been reluctantly and ineffectively applied, as the current inquiry has made apparent.

Congress is hardly powerless in the face of executive behavior. It possesses powers today far beyond any that it has had before in the history of the Republic, yet this inquiry is sure to bring calls for an expanded supervisory and participatory role.

Consider the powers that Congress could be exercising. In the Persian Gulf it could take control of the reflagging plan by starting the 60-day clock and making the President seek a declaration of war. But when a freshman member from Oregon asked the House to use the powers that it has granted itself, he found that he had next to no supporters, and his bill died. On human rights, Congress has the power to restructure the entire foreign-aid program, economic and military, but instead waited until the most delicate and doubtful moment--when riots were in progress in a dozen cities--to offer the Democracy in South Korea Act, a bill setting sanctions so pervasive that its sponsors could be sure that it would never become law. Finally, on Nicaragua, Congress has had the power to end U.S. involvement, but has instead voted at roughly 10-month intervals to grant aid to the contras but to forbid the overthrow of the regime; to grant $24 million, no strings attached; to cut off all aid; to grant $27 million, but for humanitarian purposes only, and, finally, to grant $100 million without restrictions. These powers, meant to provide oversight and guidance to the executive, are used to gain distance for Congress from unpredictable situations.

Congress is a committee, not a person. It is an array of coalitions and factions with institutionalized fissures and infrequent consensus, with inadequate leadership and insufficient discipline ever to exercise genuine co-determinative power. Given its design, Congress will never be able to be responsive, or consistent, or decisive, or even attentive in any sustained way, and thus is unfit to handle particular and current foreign-policy issues.

Yet when his greatest admirer says that CIA Director William J. Casey had it in mind to create an entirely independent, covert, self-funding, shadow CIA, it is clear that some form of oversight is needed--oversight of a kind that Congress lacks the structure and will to impose. Expanded participatory powers are not the answer--Congress does not use the powers that it has, or turns them to lesser ends. Nor would the traditional power of the purse have arrested Casey’s plans before they reached their inevitable excesses.

It is hard to imagine any oversight board that would correct the problem. There exist already an Intelligence Oversight Board, a House Permanent Select Committee on Intelligence, a Senate Select Committee on Intelligence, a President’s Special Review Board and a President’s Foreign Intelligence Advisory Board. They have been ineffective, and Congress continually proves itself incapable of the sustained attention and conscientious effort needed to provide the ceaseless oversight necessary.

Thus there is no alternative to the costly process of oversight by investigation. The process is damaging, but in some ways valuable. It is educational, provoking debate and increasing public awareness. It is corrective, exposing and clarifying the fundamentally adversarial relationship between the executive and the legislative branches. In time it may help reestablish the proper distribution of powers: initiation and administration to the White House, funding and review to Congress. It is also to some extent preventive. Congress possesses no more forceful sanction than the promise of excruciating public dismantlement of the executive’s secret operations, and the executive will learn to regulate itself if it believes that full exposure is likely or inevitable. Disappointing and damaging as this futile cycle may be, Congress will not end it by granting itself powers that it is unable to exercise.