‘Intelligence’: The Constitution Betrayed

I

From the voluminous reports on the criminal activities of what is somewhat quaintly called the intelligence community, it is difficult for us to know whether to be more astonished at the arrogance of a succession of presidents who presided over it, or at the pusillanimity of successive Congresses which acquiesced in it—and financed it. More depressing than astonishing is the realization that neither the current president nor the current Congress appears to have learned very much from this somber chapter of our history.

Over the past two decades presidents and congressmen alike have consistently and, apparently, with clear conscience betrayed the Constitution they swore to sustain. Presidential betrayal was a product, however distorted, of the office, which has boasted a long history of aggrandizement; betrayal by the Congress, passive rather than active, was precisely in its inactivity a repudiation of its historic—and its constitutional—role, and therefore doubly culpable. The constitutional injunction to take care that the laws are faithfully executed is, to be sure, laid on the president, but it is the Congress which, by virtue of its control of the purse, its power of investigation, and its power to impeach, should be the special guardian of the Constitution. It is a duty which has long been neglected and there is little reason to believe that the Congress is about to repair that neglect.

Unfortunately the exposure of the lawlessness of the CIA and the FBI and of other intelligence activities (the use of secret data by the Internal Revenue Service for purposes of harassment, for example) was neither dramatic nor conclusive. Each day brought its quota of revelations which, with the connivance of the president, spokesmen for the intelligence community minimized, or explained away as aberrations, or as the price which had to be paid for achievements never specified. Each new disclosure was dismissed as incidental, or fortuitous, to the otherwise beneficent work of the agency involved. Only rarely was there any hint that more was at stake than the unfortunate behavior of some nameless agent whose errors could be shrugged off as products of an excess of zeal. The question of legality simply never arose, not even at the highest level: another example of the banality of evil.

Some newspapers—The New York Times, The Washington Post most conspicuously—some journals—The New York Review of Books, The Nation, The Progressive—did their best to focus public interest on issues of principle, but in vain, for they appealed chiefly to those already committed to constitutionalism, and did not reach those who thought that consideration irrelevant. As for television, it was committed almost by its nature to reporting the transient and the episodic rather than interpreting the permanent and the substantial: there was no repetition of the coverage of the McCarthy hearings or the Watergate hearings.

The Rockefeller report, which concealed as much as it revealed, was something less than bold, and President Ford’s gesture toward more effective control of intelligence agencies proved merely an endorsement of existing practices and malpractices, rather than a reform. Thus where the Nixon conspiracy to brush aside Watergate and the tapes as mere peccadilloes failed, the Ford-CIA conspiracy to confound and silence criticism, or to link it with softness toward communism, succeeded. It succeeded, however, only with the connivance of the Congress.

The emergence of intelligence over the past quarter-century as an almost independent branch of the executive, largely immune from either political limitations or legal controls, poses constitutional questions graver than any since the Civil War and Reconstruction. The challenges of that era threatened the survival and the integrity of the Union; the challenges of the present crisis threaten the integrity of the Constitution. If what we may call the Nixon-Ford theory of the executive power and of the Constitution (perhaps we should not add this, for there is little evidence that either entertained any constitutional theory at all) should prevail, the Constitution will be deflected from its original character, and a revolution as far-reaching as that of 1860-1868 (but not as beneficent) will have been effected without either public debate or legal sanction, but by deception, subterfuge, lassitude, and default.

This is the larger issue, overshadowing all the particular problems and crises that have engaged and distracted our attention for the past two years: the survival of our constitutional system and of the rule of law.

Our inquiry begins with the metamorphosis of two old and familiar concepts into political institutions with a life of their own: the concept of “national security” and the concept of “secrecy.” Few things are more ominous than the audacity with which the claim of “national security” as a cover for almost anything the executive wishes to do has been advanced, except the casualness with which it has been accepted. The phrase itself is unknown to the Constitution; it is not therefore a substantive power but a principle in search of a definition. The Constitution does require the president to “take care that the laws are faithfully executed”—an admonition which scarcely authorizes him to nullify them. Yet it is precisely the assumption—unilateral to be sure—that the concept is a blank check, that provided the basis for the Bay of Pigs; justified Johnson’s invasion of Santo Domingo, presided over the fraud of the Tonkin Gulf operation (one which the Congress was tricked into approving), dictated the invasion of Cambodia, authorized the gross intervention in the internal affairs of Chile, excited hysterical approval for the illegal Mayagüez operation, and was invoked to justify systematic lying to the Congress and the American people about all these enterprises.

The second concept is equally familiar, for secrecy is as old as politics, and in America as old as the Revolution and the Federal Convention. But only in our time has it come to be not so much a means as an end in itself, and to permeate the whole of public life. That there must be secrecy in planning—secrecy in board meetings, in faculty meetings, in committee meetings, in cabinet meetings, in conducting the operations of war and so forth—is obvious; that is very different from secrecy in major commitments or major policies.

The fact is that the primary function of governmental secrecy in our time has not been to protect the nation against external enemies, but to deny to the American people information essential to the functioning of democracy, to the Congress information essential to the functioning of the legislative branch, and—at times—to the president himself information which he should have to conduct his office. From time immemorial a familiar tool of despotic governments, secrecy is, in all but emergency situations, not only alien to but subversive of democracy. The reason why investigation of the CIA and the FBI is of such importance is not merely to detect and expose particular outrages which they have committed, but to make clear that the very principle of secrecy, unregulated and unrestrained, is odious to our kind of government and may destroy it.

During most of the past decade the president and the intelligence community have regarded themselves as above the law and the Constitution, or have assumed that the Constitution was what they chose to make it: it is this indifference to constitutional restraints that is perhaps the most threatening of all the evidence that emerges from the findings of the Church committee. Presidents Johnson and Nixon both thought themselves above the law, and in this they were for the most part sustained by their attorneys general; it is no less alarming that a large segment of the Congress acquiesced in this assumption of executive immunity from Constitutional restraints. But it this not the very definition of tyranny?

II

Turn then to a consideration of those issues implicit in the executive invocation of “national security” and of secrecy, and explicit in the findings of the Rockefeller, the Church, and the Pike committees, but not adequately clarified or resolved by them.

First is the integrity of democracy and of representative government. It should be (but alas is not) too elementary to say that when, as in our system, government is made by and belongs to the people, they not only have a right to know what their government is about but must do so if democracy is to function. That was one of the persistent themes of the Revolutionary era—that only where government was open, the press free, and the people educated, could self-government flourish. To deny the people knowledge of what their government does is to deny them the ability to pass judgment on its conduct, and thus to make a mockery of the democratic process. If recent administrations had respected this elementary principle we might have avoided the Bay of Pigs, war in Laos, Vietnam, and Cambodia, and alienation of much of world opinion by our ill-considered interventions in the internal affairs of Greece, Portugal, Chile, and many other countries.

Second is the integrity of the Constitution. Unilateral interpretation of national security and resort to secrecy, especially in foreign affairs, violate not only specific provisions of the Constitution but its fundamental character. For there is nothing more fundamental than the principle that in their separate spheres—that is, in the exercise of powers duly authorized—the executive and the legislative departments are equal and independent: the principle implicit in the Federal Constitution is explicit in a number of the state constitutions. To the Congress was assigned specific and extensive legislative powers, and in addition a share in some that were executive in nature. Clearly to fulfill its constitutional obligations, the Congress must have access to all information relevant to legislation. To withhold or to conceal information essential to law-making—as the executive has been doing for more than a decade, on a vast scale—is to undermine the foundations of the Constitution. The executive has no more right to deny to the Congress information it needs for law-making than it has to deny to the courts information essential to arriving at sound judgments in cases before them.

Third is the vindication of the great principle, written into the Constitution, that the power of the purse belongs to the Congress. All the Founding Fathers knew the long history of the struggle between the Parliament and the Crown for control of the purse in the Tudor and Stuart period, and knew, too, that it was the victory of the Parliament on this issue that forever ended the threat of royal tyranny in Britain itself. That struggle was part of American history, too, and the control of the purse by colonial legislatures was one of the instruments for independence.

So vital was this principal that the Fathers wrote it into both their state and their national constitutions. In doing this they were animated by the fear of just such reckless misuse of money for military adventures as we have witnessed again and again in our own time. Thus George Mason—who drafted the first Bill of Rights—observed that “the purse and the sword must not be in the same hands,” and thus, too, James Madison considered it “highly dangerous to give the keys to the Treasury and the command of the army into the same hands.” In his memorable Commentaries on the Constitution, Justice Joseph Story restated the basic principle:

In arbitrary governments, the prince levies what money he pleases from his subjects, disposes of it as he thinks proper, and is beyond responsibility or reproof. It is wise to interpose, in a republic, every restraint by which the public treasure, the common fund of all, should be applied with unshrinking honesty to such subjects as legitimately belong to the common defense and general welfare. Congress is made the guardian of this treasure; and to make their responsibility complete and perfect, a regular account of receipts and expenditures is required to be published that the people may know what money is expended and for what purpose and by what authority.

Time has but strengthened the validity of that principle—though not, alas, executive respect for it. Thus Justice Robert Jackson, in the Youngstown v. Sawyer case, reminded the president that “Congress alone controls the raising of revenue and their appropriations and may determine in what manner and by what means they shall be spent for military and naval procurement…. While Congress cannot deprive the president of command of the army or navy, only Congress can give him an army and navy to command.”

Where presidential war-making and the paramilitary activities of the CIA are involved, Congress has been doubly culpable, for it has connived with the executive branch to flout two clear provisions of the Constitution, both laid down in Article I, section 9. First, “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” But the president has for a long time now juggled appropriations made for one purpose to cover expenditures for intelligence and paramilitary operations, without reporting this to the Congress: these are clearly expenditures not authorized by Congress and therefore invalid. The second violation is even more ostentatious. Section 9 further requires that “a regular statement and account of receipts and expenditures of all public money shall be published from time to time.” The precise meaning of such terms as “regular” or “from time to time” may not be clear, but that is irrelevant. No “statement” of CIA expenditures, regular or otherwise, has ever been published.

What is sobering here, as elsewhere, is that Congress has chosen to ignore this provision of the Constitution. There is precedent, to be sure, for “general operations” appropriations to be expended at the discretion of an executive officer, but in the past it was always Congress that laid down the guidelines for such expenditures, and that could and did have knowledge of them. There is no precedent for flouting the requirement for a publication of receipts and expenditures. Yet the power of the Congress to force compliance with this provision of the Constitution by the president or the director of the budget is clear. It could publish its own statement; it could withhold appropriations; it could invoke the power of impeachment. There has been no hint of resort to any of these measures from the Congress in the last quarter-century. Quite the contrary. The Pike committee report estimated that total expenditures for intelligence amounted to over $10 billion, but supinely acquiesced, as did the Church committee, in the refusal of the CIA or the Bureau of the Budget to provide it with reliable figures or to permit the committees to publish their own findings!

Fourth, the Constitution assigns to the Congress a substantial share in the conduct of foreign relations. The power to declare war is specifically granted to Congress and so too the exercise of those powers essential to the conduct of war. To the Senate was assigned authority to advise on as well as to consent to treaties, and the authority to confirm ministers and ambassadors appointed by the president.

Congress has allowed the first of these powers to be eroded, though recent war powers legislation has recovered some of the powers lost by default in the Johnson and Nixon administrations. It has failed egregiously to exercise the second of these powers; indeed it has itself ignored the historic meaning and the constitutional implications of the requirement of “consent” for treaties by permitting the executive to substitute “executive agreements” for treaties, thus permitting presidents to bypass the constitutional requirement of ratification and to conceal from the Congress and the people the substance of some international agreements of far-reaching importance. It is reassuring that Senator Eagleton has introduced legislation which should put an end to this abuse.

The conduct of foreign policy is constitutionally lodged in the executive and Congress; there is no reason to dispute the conclusion of that most learned student of our constitutional system, Arthur Bestor, that “a system of checks and balances is prescribed as explicitly for the conduct of foreign relations as for the handling of domestic matters, even though the precise allocations of power are different in detail.” Thus while the power to declare and to sustain war is assigned to Congress, to the president was given, in the words of Hamilton, “the direction of war,” but only when “authorized or begun” by legislative decision.

While the day-by-day conduct of foreign affairs and diplomacy must inevitably be controlled by the president, to the Senate is assigned a share in the formulation of foreign policy and in the making of treaties. That is explicit in the “advise and consent” clause; it is implicit in the general power of law-making, for we must not forget that treaties are laws and must be enacted by Congress in terms laid down in the Constitution (ratification by the Senate, appropriations and other enabling legislation by both houses). This was the understanding of the most perspicacious of the Constitution makers. Thus Madison’s interesting observation that “the Senate represents the States alone and for this as well as other obvious reasons it was proper that the President should be an agent in the Treaties.” So, too, that advocate of high prerogatives, Alexander Hamilton, wrote in no. 75 of the Federalist Papers that treaty-making was more properly legislative than executive in character, and that “though it does not seem strictly to fall within the definition of either,” and though the president was no doubt “the most fit agent in negotiations with foreign countries, the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” And he added, prophetically, that

it would be utterly unsafe and improper to entrust that great power [treaty making] to the President alone, for the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate created and circumstanced as would be the President of the United States.

Elsewhere Hamilton indicated clearly his expectation that the Senate would play a role in the actual making of treaties. “The Senate,” he wrote, “might with propriety have meditated the punishment of the executive for a deviation of the instructions of the Senate (my italics).” And James Wilson, after Madison the ablest man in the Convention, asserted roundly that “making peace and war are generally determined by writers on the laws of Nations, to be legislative powers.”

III

Consideration of control over foreign policy is far from irrelevant to a discussion of the role of the intelligence community, for President Nixon and Professor Eugene Rostow of the Yale Law School, in his statement to the Church committee, have claimed that the executive has a right to conduct covert operations, and even paramilitary operations, against nations with whom we are not legally at war, as part of his conduct of diplomacy and foreign relations, and of his duty to protect the security of the nation.¹

Clearly such operations not only affect the conduct of foreign affairs. They are, in large degree, foreign affairs. This was true when we intervened in Iran to overthrow Mossadegh in 1953, in Guatemala to depose Arbenz in 1954, in Cuba at the Bay of Pigs, and in Santo Domingo in 1965. In the eyes of the law and the Constitution none of these was an enemy. Certainly had Castro attacked Florida with troops and planes, had Bosch landed twenty thousand Dominican troops on American soil, we would have regarded these as acts of war, not as “covert operations,” to be justified on some claim of the protection of national security. I say nothing of “covert operations” in Laos which ended up as part of the longest war in our history.

President Nixon’s defense of these and analogous operations, recent as it is, has already achieved historic importance. To the question, “Please state whether you believe that actions otherwise illegal, may be legally undertaken pursuant to Presidential authorization, following a determination by the President, or some other senior governmental official, that the actions are necessary to protect the ‘national security’ of the United States,” Mr. Nixon replied:

I assume that the reference to “actions otherwise illegal” means actions which, if undertaken by private persons, would violate criminal law. It is quite obvious that there are certain inherently governmental actions which, if undertaken by the sovereign in protection of the interest of the nation’s security are lawful, but which if undertaken by private persons are not.

To support this constitutionally novel theory Mr. Nixon cited the removal of West Coast Japanese to “relocation camps,” Lincoln’s proclamation of a naval blockade of the South, and an obiter dicta by Justice White in the Katz decision on warrantless wiretapping in 1969. Two of these precedents are erroneous, the third irrelevant. The Japanese relocation order came in time of war proclaimed by Congress; whatever we may think of its wisdom or even of its morality, its legality was duly sustained by the Supreme Court in two decisions. Lincoln’s blockade proclamation came likewise in time of war; its legality, too, was sustained by the highest court in the famous Prize cases. As for the Katz decision, which unanimously rejected the claim of an executive right to warrantless wiretapping, Justice White alone suggested—in an obiter dicta—that in some cases there might be special dispensation for the assertion of presidential prerogative, but the court swept this aside as irrelevant to the case. So much for Mr. Nixon’s legal argument.

But quite aside from the question of “precedents” that might be found in marginal judicial observations, the principle of executive sovereignty, or of executive supremacy to the law, is one unknown to our constitutional system. The president, like everyone else, is bound by the law; the Constitution does not recognize “presidential prerogative.”

Professor Rostow, however, in his statement to the Church committee, has endorsed presidential claims to an inherent right to “direct foreign covert operations in the absence of statutory authority,” because he is president, because he is “the sole organ of the nation in the conduct of foreign relations,” and because he is commander in chief of our armed forces. We can dismiss the constitutionally bankrupt argument of Mr. Nixon but we cannot ignore the arguments of so distinguished a student of our constitutional system as Professor Rostow. Rostow’s statement, moreover, offers a compendium of the constitutional claims that have been and no doubt will be made for the legitimacy of foreign covert operations, and therefore deserves scrutiny.

What strikes us at the threshold here is that broad and ambiguous authority is justified by reference to authority even broader and more ambiguous: the argument is circular. Consider the claim of authority drawn from the special position of commander in chief of the army and the navy. But the CIA is neither army nor navy. It is unknown to the Constitution. It is the creation of Congress, it can be regulated or abolished by Congress. Nor would the vague powers that might be ascribed to the office of president authorize him to engage in activities contrary to international law—as surely the Bay of Pigs was, to take but one example—any more than whatever “sovereign” powers Hitler had in Germany authorized his invasions of other nations or violations of international law. Surely the Nuremberg court made that clear.

As for diplomacy, or the conduct of foreign relations, the president does indeed have the right to receive foreign ministers, but his power to appoint ministers is shared by the Senate. If we look away from this rather specialized authority to the larger problem of “diplomacy,” it is appropriate to remember that authority in this realm, too, is shared by the Senate; that the Department of State is a statutory not a constitutional creation, and Congress can regulate it, restrict it, or even dismantle it through ordinary legislation.

The claim that the president derives some special authority, independent of the Congress—or the Constitution—because he is, as Rostow puts it, “the sole organ in the conduct of foreign relations” deserves brief consideration. This phrase, hackneyed now by repetition, is neither historically relevant nor logically accurate. It comes from John Marshall, who said—the phrasing is important—that “the President is the sole organ of the nation in its external relations and its sole representative with foreign nations.” It is relevant, too, that it was not Chief Justice Marshall who said this, but Representative Marshall; that he was arguing executive authority not against the Congress but against the judiciary; and that what he was referring to was the highly technical question of communication, not of conduct. As E.S. Corwin, whom Professor Rostow cites with approval elsewhere, pointed out, “What Marshall had in mind was quite simply the Presidential role as an instrument of communication with other nations”—a far cry, this, from an independent power to circumvent the Constitution by covert operations against nations with whom we were otherwise at peace.

In his statement, Professor Rostow justifies presidential authority to launch covert operations on other grounds as well. He cites, for example, the inherent right of self-defense. Sound enough, no doubt—there was really no need for a declaration of war after Pearl Harbor! But neither Cuba nor Santo Domingo, Vietnam nor Cambodia nor Chile had attacked the United States, or had any remote intention of doing so. He submits presidential responsibility for policy-making, and cites the Monroe Doctrine as an example of presidential policy becoming “national policy.” But “national policy” is not law; the Monroe Doctrine did not even become national policy when Monroe announced it—not as a special statement but as part of his annual message to Congress—and it was not seriously invoked for almost a quarter-century; clearly it is no longer “national policy.” Presidents can proclaim policies but they cannot give them the force of law or impose them upon Congress, and it is doubtful that any court would recognize a presidential “policy” unless it was somehow rooted in law or endorsed by legislative action.

Professor Rostow invokes, too, the “clumsy” provisions of Article 51 of the Charter of the United Nations to vindicate a “right of coercion” against those who violate international law. But the UN charter did not make the United States the special guardian of international law—there are other institutions for that—nor does international law recognize the right of one nation to take it upon itself to punish what it may consider violations of international law. It is not irrelevant to recall here that though Johnson and Nixon invoked the SEATO agreement as justification for military intervention in Southeast Asia, none of the other major signatories endorsed this argument: neither Britain, France, nor India. The president of the United States cannot singlehandedly create international law.

Congress, Professor Rostow concludes, “has no more authority to regulate the independent powers of the President, than the President has to regulate the independent powers of Congress.” That would be a plausible argument were it based on—or, to use a favorite judicial phrase, did it not radiate—a false analogy. The independent powers of the Congress are spelled out in the Constitution in great detail—no fewer than twenty-eight of them in Article I, section 8, and perhaps a dozen others scattered through other parts of the document. But the independent powers of the president are few and ambiguous. He is “vested” with the “executive power.” That was left purposely vague, but to call it an “independent power” in any meaningful sense gets us nowhere: we cannot simply assign any power we please to the “executive power” and then claim constitutional authority!

The president is commander in chief of the army and navy—a power, as Hamilton pointed out, equivalent to the command in the field of a general or an admiral. He may require the opinion of his principal officers; he has the power to grant pardons and reprieves; with the advice and consent of the Senate he may make treaties and appoint ministers; he can receive these on his own. He is to give Congress information on the state of the union and recommend measures to it, and he may call the Congress into special session. Not least important, not least vague, he is to take care that the laws are faithfully executed—the laws, mind you, not some private notions he may have of the requirements of national security; executed, mind you, not originated.

In any event the power to engage in covert operations in time of peace, or to engage in quasi-war on his own, is not an “independent” power nor is it “inherent” in the office. Certainly the power to send troops into Cuba or Vietnam or Cambodia without congressional authority or to spend money on enterprises not authorized by Congress is neither independent nor inherent.

IV

Exercise of unauthorized war powers by the president dramatizes a fifth major constitutional issue implicit in the attempt to control presidential misuse of the intelligence apparatus: the threat to the principle of “the exact subordination” of the military to the civil authority. Nothing more alarmed the Founding Fathers than the specter of military dictatorship. They were familiar with the concentration of civil and military authority in most of the Old World monarchs, and they were determined that in the new United States the military should forever be subordinate to the civil power. It was a principle written into half the state constitutions, and somewhat more than implicit in the federal, with its provision that the commander in chief of the armed forces should always be a civilian, and that the power to declare war and to finance it should be lodged in the legislature. So sensitive was public opinion to even the appearance of a privileged military class that it looked upon the otherwise innocuous Order of the Cincinnati as darkly dangerous to the liberties of Americans and, despite Washington’s sponsorship, forced modifications upon its charter before it was allowed to survive.

As Garry Wills has observed in these pages,² the CIA is what the Revolutionary generation of Americans feared the Cincinnati might be. The CIA is analogous to what they saw when they looked at the Old World political military scene: an army which was almost the king’s private army, his weapon and his instrument, above the law, except in Britain exempt from civilian control, its activities secret, its officers constituting a privileged class and recruited from an elite, its power and ambitions directed not only to national enemies but often to supposed enemies at home.

The analogy is not far-fetched. The CIA is subject only to the president—and sometimes ignores his will; it is lavishly financed, not according to constitutional requirements, but by secret funds; far from being an instrument of the nation or of the whole government, it is an instrument of the executive, and it plays favorites among branches and departments, and even frustrates other governmental activities. Its contempt for the representatives of the people was displayed again and again in the course of the Church and the Pike committee hearings, nowhere more arrogantly than in its refusal to testify except on its own terms or to provide the committees with information to which they had a constitutional right. Much of all this is as applicable to the FBI as to the CIA.

At stakes, finally, in these inquiries into the intelligence community is the integrity of the Bill of Rights. There is no evidence in the voluminous Church reports (we are not allowed to see the full text of the Pike report) that either the CIA or the FBI ever gave serious consideration to the guarantees of the Bill of Rights. Thus William Sullivan, one-time assistant director of the FBI, who helped draft the odious Huston Plan for setting up a police state, confessed to the Church committee that in all his experience with intelligence he never heard any question of legality raised. “We never gave a thought to this line of reasoning” he said, “because we were just naturally pragmatists”—a definition of pragmatism that would doubtless have edified William James.

Elsewhere Sullivan testified that he “never heard anyone question the legality or constitutionality” of the campaign to discredit Dr. King, and Richard Helms—still defiant and unrepentant, and still, apparently, immune from charges of perjury—confessed that he, too, never gave a thought to the legality of the mail opening project carried out for twenty years by the New York City Post Office. The evidence of high-handed violations of the rights of Americans by the intelligence community is by now mountainous, and almost every day we have new revelations of lawlessness and violence. When, if ever, the whole record is put together, it will make A. Mitchell Palmer’s “reign of terror” and Senator McCarthy’s vendettas against the “disloyal” look casual and ineffective by comparison.

We should not, however, be too critical of the CIA and the FBI. After all, they acted if not with the full knowledge, at least with the benign tolerance, of successive presidents; after all, no attorneys general, unless perhaps Ramsey Clark, were so uncooperative as to intervene; after all, Congress, whose business it was to know what was going on, turned a blind eye.

That is the heart of the problem—the problem to which, understandably enough, neither the Church nor the Pike committee addresses itself. How explain the acquiescence, the apathy, the failure of nerve of the Congress?

Congress failed for two decades to exercise its constitutional obligation to oversee the activities of the intelligence agencies.

When forced by revelations of agency lawlessness to undertake investigations it acquiesced in the refusal of the agencies to cooperate except on their own terms, or on terms set by the president, thus undermining the future effectiveness of what has long been a major instrument for performing its constitutional duties of oversight and legislation.

It failed to insist upon or to exercise its power over the purse, and connived with the executive in its constitutional obligations under Article I, section 9.

It failed to explore the potentialities of the power to advise on treaties and participate in the formation of foreign policy, and permitted the gross abuse of the instrument of executive treaties to undermine the constitutional provisions for treaty-making.

It acquiesced in imperial claims of executive privilege, and has so far failed to repudiate the unprecedented extension of that privilege to officials of private corporations.

For years it connived with presidential violations of domestic and international law by covert paramilitary and overt military operations against governments with whom we were not at war. The War Powers Act finally put an end to the worst excesses of executive power in this area, but covert operations go on apparently unchecked.

It is not too difficult to understand the failure of Congress to curb the excesses of Presidents Kennedy and Johnson in the use of the intelligence and military agencies. During these years it shared presidential obsessions about a world-wide communist conspiracy and the danger of internal subversion as well as presidential euphoria about world power and the responsibility of the United States to set the world aright. But how has it happened that at a time when the executive branch is in disgrace, and the office itself held by a man with no popular mandate, and when revelations of official lawlessness and violence fill the air and darken the skies, the Congress still surrenders to the executive on issue after issue and principle after principle, with the result that the elaborate investigation into the misconduct of the intelligence agencies ends not as a victory for the congressional version of constitutionalism but for the presidential version of power?

To be sure the final verdict is not yet in. A new Congress may do what its predecessors have conspicuously failed to do. It may yet make clear—not just by rhetoric but by the reassertion of its own prerogatives—the nature of the threat to our constitutional system and our freedoms by the consistent disregard of constitutional limits and commands, the resort to secrecy to conceal from the American people what its government does, the steady aggrandizement of executive claims and executive powers, and the erosion of legislative authority in domestic affairs and the abdication of congressional authority in foreign affairs.