Loophole for Rogue Operations : Toothless Safeguards Allow Covert Actions by Outsiders

One evil uncovered by the Iran- contra select committee hearings was the “privatization” of U.S. foreign policy by farming out covert projects to outside entrepreneurs and organizations. But an obscure provision in a March 31 order by President Reagan, supposedly to reform covert activities, actually gives explicit authorization for the first time to such privatization.

The order was billed as an implementation of a Tower Commission recommendation. But in fact it seizes upon a narrow loophole in the commission report’s wording to institutionalize a practice on which the board itself frowned: The report said that the use of outsiders might be helpful “in some unique case” but warned that private intermediators may obtain leverage “for return favors or even blackmail.”

The report suggested that before enlisting outsiders, the need for them should be investigated. “The U.S.,” it said, “has enormous resources invested in agencies and departments in order to conduct the government’s business. In all but a very few cases, these can perform the functions needed. If not, (we ought) to find out why.”

But this misreads the motives behind the Iran-contra affair. The various intelligence agencies of the armed services, civilian departments and the Central Intelligence Agency are awash with agents trained for covert activities, though their total number and cost has never been revealed. It is not lack of undercover operatives that led Rear Adm. John M. Poindexter and Lt. Col. Oliver L. North to utilize outsiders (“assets”?) and generate “residuals” in the arms-for-hostages deals. It was a desire to evade all statutory and constitutional supervision and even to exclude the normal intelligence agencies in order to keep illegal activities secret.

The Tower Commission report offered a loophole for a repetition of such practices when it cautioned against privatization “except in very limited ways and under close observation and supervision.” This was quickly seized upon by the White House. Its March 31 directive says: “The use of private individuals and organizations as intermediaries to conduct covert activities will be appropriately limited and subject in every case to close observation and supervision by appropriate executive departments and agencies.”

What had been done before only surreptitiously is thus now given the kind of presidential authority that North wanted and Poindexter dared not ask for aloud in the Oval Office, lest it link the President with “high crimes and misdemeanors.”

In the new executive order, this provision follows immediately upon another that promises the “NSC staff itself will not undertake covert activities.” This made headlines. But the little-noticed privatization paragraph that follows would authorize a future national security adviser to organize another Iran-contra-style deal through outsiders under pressure from a headstrong President. So long as a Poindexter did not utilize a staffer like North, at least openly, he could plead executive authority against an indictment.

The language of this new authorizing provision is partly borrowed from the Tower board but has new ambiguities added. What does “appropriately limited” mean, if anything? And which would be the departments or agencies considered “appropriate” to exercise “close observation and supervision”? Are these safeguards or merely new avenues of evasion?

The most notorious example of privatization came to light a decade ago in the Senate’s investigation of CIA abuses, which was chaired by the late Sen. Frank Church of Idaho. The senators found that Mafia gangsters from Chicago had been enlisted in a CIA plot to assassinate Fidel Castro.

Assassination plots against foreign rulers have been made illegal by statute in the wake of the Church committee revelations. But does not this Reagan “reform” leave the door open to other shameful abuses of law in the future? Is not everything but assassination left once again to the discretion of the President or--on a wink from the Oval Office--to his national security adviser?

Perhaps as a result of private complaints from congressional sources, some safeguards were added in new guidelines on covert operations offered Aug. 9 by the President’s letter to David Boren (D-Okla.), chairman of the Senate Intelligence Committee. In it, Reagan promised that “all applicable procedures” for presidential findings and “notification to Congress” will also apply to outsiders enlisted in covert activities. But a new loophole has been added: “in all but the most exceptional circumstances.” This is as wide as a future President cares to make it. What could be more exceptional than the Iran hostage crisis and the Boland amendment? We are back where we started. These toothless safeguards are intended to forestall new statutory restrictions.

All this effort to reconcile illegalities with law--whether by officials or mercenaries--is like trying to square a circle. You cannot have accountability if you have secrecy. You cannot have secrecy without lying. To institutionalize dirty tricks, as we have done since 1947, is to nurture a cancer in the bowels of constitutional government.