President, Panel Agree on Covert Action Rules : Foreign Policy to Feel Effect of Iran Scandal

Just as the Watergate scandal of the 1970s reshaped the way this country conducts election campaigns, the Iran- contra affair appears certain to leave its imprint on the way foreign policy is conducted.

A number of proposals circulating on Capitol Hill and in the Administration would put tighter limits on the President’s ability to carry out secret operations without notifying Congress and key officials of his own Administration. Others would go the opposite direction, cutting back on the number of congressmen who must be informed about covert plans.

Room for Evasion

Experts inside and outside of government agree, however, that new laws alone cannot prevent a repetition of the Iran-contra affair. And almost any foreseeable congressional curb will leave White House subordinates at least some room for the sort of evasion practiced by President Reagan’s aides when they skirted the two-year ban on aiding Nicaraguan rebels.

Rather than new laws, the most significant product of the Iran-contra affair is likely to be a sharper awareness on the part of the White House--Reagan’s and those that follow--of the need to undertake policies that have political acceptance. Presidents and their aides will not be able to ignore the political hazards of pursuing secret policies outside the bounds of the system.

“No policy can be effective for long,” said Rep. Dick Cheney of Wyoming, the top-ranking Republican on the House Iran-contra committee, “without the wholehearted support of the Congress and the American people.”

University of Virginia political scientist Larry Sabato predicted that “for a decade or perhaps a decade and a half, the President and his senior staff members will probably be unwilling to undertake major secret operations without the acquiescence of Congress.”

“I was surprised that officials would come up here and deliberately lie to Congress in the wake of Watergate,” as the Iran-contra investigation showed they had done, said Rep. Henry J. Hyde (R-Ill.), a member of the House Iran-contra committee. “I thought that was (as unfashionable as) wearing a hoop skirt.”

The Iran-contra affair, said Sen. Warren B. Rudman (R-N. H.), vice chairman of the Senate investigating committee, represented “a breakdown of the system, not the law.”

‘Proper Attitudes’ Needed

“The solution,” added House committee Chairman Lee H. Hamilton (D-Ind.), “ . . . lies less in new structures or new laws than in proper attitudes.”

Congressional scholar Norman Ornstein draws a sharp distinction between the Iran-contra affair and Watergate, which generated a much deeper sense of public outrage and led to a spate of laws governing campaign finance and political ethics.

“We aren’t going to see dramatic structural reform,” said Ornstein, of the American Enterprise Institute. “This time, while there will be those who want to draw broad lessons, we have been a little more sensitized and educated and we don’t see this as any giant structural flaw. This was a bunch of people trying to get around the law.”

The House and Senate committees, which concluded their public hearings last Monday, are expected to issue recommendations in October. Meanwhile, members of other congressional committees with jurisdiction over foreign policy are putting together their own proposals.

Tight Reins Impractical

Many believe it would be impractical and even unconstitutional for Congress to put tight reins on the President’s abilities to carry out his foreign policy.

Congress must be “careful not to overreact,” Sen. George J. Mitchell (D-Me.) warned. To cover every contingency, he said, “every law would be 2,000 pages long, full of hypotheticals and assumptions. You can’t run a government that way.”

The War Powers Act, enacted over a presidential veto in post-Vietnam 1973, is one example of how congressional attempts to assert legal authority over foreign policy can be ineffective.

The act was intended to assure that no President could expose U.S. troops to prolonged combat without congressional approval. Although such situations have occurred since then, no President has agreed to be bound by the act’s provisions, and repeated attempts to have the matter settled in court have failed.

Yet another legal challenge was mounted this week, when 150 congressional Democrats asked a federal district judge to force the President to invoke the act and allow lawmakers to decide whether U.S. warships should remain in the Persian Gulf.

Centuries-Old Dispute

Whatever the outcome of that court challenge, the centuries-old dispute will remain over how much control Congress may or should exercise under the Constitution in the field of foreign policy, and how much authority it wants to have--a battle described by Rep. Hyde as “the congressional supremacists versus the presidential monarchists.”

Congress has always been of two minds on these questions. On the tanker reflagging issue, for example, Reagan’s decision to send in U.S. warships has been widely criticized, but “you don’t see Capitol Hill slapping restrictions on the President,” Ornstein said. “That reflects a cowardice that they don’t want to take responsibility for those decisions.”

If Congress is neither able nor willing to assume full responsibility for foreign policy, the Iran-contra scandal nonetheless demonstrates the dangers to a President who tries to ignore congressional thinking.

The resulting damage can extend from such profound impacts as the plunge in public trust suffered by President Reagan to such small but pointed reminders as the new practice during Capitol Hill hearings of swearing in Administration officials--most notably, Assistant Secretary of State Elliott Abrams--who once were assumed to be truthful.

To help rebuild that trust, Reagan has directed his staff to prepare an executive order stating that all covert activities other than routine intelligence gathering would have to be authorized with a signed presidential “finding.” The findings would be reissued each year.

The new order would require also that the President notify Congress of every finding within two working days of his signing it. Although current law requires that Congress receive “timely” notification of findings, the Administration did not disclose the arms sales to lawmakers until the deals became public almost a year after Reagan had signed the first finding authorizing them.

Some in the intelligence community have criticized the proposed order as too restrictive. They warn that it could backfire by encouraging front-line intelligence officials to go outside established procedures when they want to carry out a plan that is risky or sensitive.

On the other hand, some on Capitol Hill say that it does not go far enough. Rep. George E. Brown Jr. (D-Colton), a member of the House Intelligence Committee, noted that an executive order can be changed or ignored whenever a President deems it necessary. Brown dismissed the proposal as “a face-saving substitute to (ward off) whatever recommendations come out of the hearings. . . . (The President) does not have to be bound by this.”

Reps. Louis Stokes (D-Ohio) and Edward P. Boland (D-Mass.), current and former chairmen of the Intelligence Committee, have introduced legislation that would put a 48-hour notification requirement into law in all but emergency situations.

However, Hamilton, another former Intelligence Committee chairman, noted that the Administration has long held that the Constitution gives the President the power to withhold notification “no matter what you put in that law. . . . I don’t think the solution to these problems is a massive number of changes to the law.”

Weaknesses in Law

Certainly, though, the weaknesses and contradictions in existing law made it easier for renegades within the White House to carry out secret operations. Even some of those who supported the series of amendments written by Boland that banned U.S. aid to the contras over a two-year period ending last year acknowledged that provisions in those amendments were ambiguous.

Another source of confusion during the investigation was the fact that there are other laws governing the sale of U.S. arms to foreign countries and each contains a separate provision spelling out the conditions for informing Congress.

Rep. Howard L. Berman (D-Panorama City) said he is putting the “finishing touches” on comprehensive legislation that would bring four of those statutes--the Arms Export Control Act, the Export Administration Act, the Foreign Assistance Act and the National Security Act--into conformance.

Berman said that the single reporting requirement would be a “much tighter” one than is contained in any of the laws currently on the books.

In writing future laws, Ornstein said, Congress’ attitude is likely to be, “We don’t trust those bastards. We can’t give them any leeway. Therefore, we have to write much more detail and restriction into the law.”

“That,” Ornstein said, “is going to be one of the bitter legacies for the next President.”

Risk of Leaks Cited

Republicans say that not all the blame lies with the President and that Congress should look inward at steps that can be taken to reduce the danger that sensitive plans will become public. That, they say, will make the Administration more willing to confide in lawmakers.

One idea they are promoting is the recommendation by the presidentially appointed commission headed by former Sen. John Tower (R-Tex.) that the House and Senate intelligence committees be joined into a single small panel.

However, that proposal is meeting with little enthusiasm from the Democrats, who control both houses. Rep. Anthony C. Beilenson (D-Los Angeles), a member of the House Intelligence Committee, said that the result of such a merger would inevitably be “much less adequate review and oversight . . . . We don’t do a good enough job as it is.”

Beilenson and others contend, moreover, that most leaks to the media come not from Congress, but from the Administration itself--particularly when controversial proposals generate infighting among various agencies, and a well-timed leak can be used to kill an unpopular plan.

With that in mind, Rep. Bill McCollum (R-Fla.) and the other House Republicans on the Iran-contra panel have introduced legislation that would significantly strengthen the penalties against government employees who leak classified information.

Some of the White House insiders most scarred by the Iran-contra affair have offered their own recommendations to assure that politically explosive moves such as the Iran arms sales receive thorough review before they begin and while they are under way.

During the hearings, Atty. Gen. Edwin Meese III, Secretary of State George P. Shultz and Defense Secretary Caspar W. Weinberger all professed that they had been ignorant of many of the details of the arms sales and had been totally surprised to learn that profits had been diverted to the contras.

The White House already has pledged that the National Security Council staff will never again have the power to carry out secret operations and that it will return to its traditional role of offering foreign policy advice to the President.

Shultz recommended during the hearings that intelligence officials, such as the late CIA Director William J. Casey, be kept out of the business of making policy. Hamilton agreed that, because the two roles were mixed, “questionable intelligence was used to bolster poor decisions. . . . Too often, intelligence is seen as a tool to make policy look good, rather than a tool for making good policy.”

Donald T. Regan, who lost his post as White House chief of staff because of the scandal, suggested that secret operations be reviewed by the White House counsel. He suggested also that the flow of White House paper work be rerouted “so that we’re sure we know under what circumstance the President is getting it, how he’s getting it and what he does with it.”

Regan, Weinberger and Shultz have all said they were not informed that Reagan had signed an authorization for the Iran arms sales until last November. That was almost a year after the President is believed to have signed a preliminary draft.