BRIEFING OF CONGRESSMAN HYDE ON THE LEGAL, STATUTORY AND CONSTITUTIONAL AUTHORITY FOR COVERT ACTION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000500040002-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 22, 2016
• Document Release Date: May 26, 2009
• Sequence Number: 2
• Publication Date: June 23, 1986
• Content Type: MEMO

Approved For Release 2009/08/19: CIA-RDP89B00236R000500040002-3
OCA 86-2182
23 June 1986
SUBJECT: Briefing of Congressman Hyde on the Legal, Statutory and
Constitutional Authority for Covert Action
1. On June 23, 1986, pursuant to a request from Congressman Henry Hyde
(delivered through Tom Smeeton, staff person on the House Foreign Affairs
Tom Smeeton was present during the
briefing. I also supplied a copy of an unclassified legal memorandum entitled
the "Constitutional, Statut r and Leaal Basis for Covert A ' n," dated
STAT 24 October 1974, written by In addition,
I gave him a document published by the American Bar Association entitled,
"Oversight and Accountability of the U.S. Intelligence Agencies: An
Evaluation," pages 19 to 25.
STAT
2. Initially, we discussed the Constitutional basis of covert action,
which is derived from the President's summary powers on foreign policy. Early
Constitutional law cases recognize the President as the sole organ of foreign
policy. Next, I explained the additional and independent Executive branch
authorities for covert action provided by the National Security Act of 1947.
Appropriate reference was made to the legislative history of the 1947 Act.
Another source of independent authority for covert operations I mentioned was
the so-called doctrine of "congressional ratification." Over the years
Congress has consistently appropriated money for covert action which, in
itself, serves as an independent legal basis for covert action.
briefed Mr. Hyde on the above subject.
STAT
Approved For Release 2009/08/19: CIA-RDP89B00236R000500040002-3
 STAT
Approved For Release 2009/08/19: CIA-RDP89B00236R000500040002-3
5. Our discussion then turned to some practical arguments on why the
President is the best suited and should conduct covert action: (1) covert
action is a better way of meeting such action of hostile foreign governments;
if we responded openly it would alert that country to the fact that we were on
to their operations; (2) historically, up until 1970, Presidents had committed
troops abroad no less than 125 times; the safety and security of our Republic
is as much attributable to covert operations as it is to overt operations; (3)
the President is the appropriate person, from a political policy standpoint,
to sanction covert operations because he is the only public official elected
by all the people; (4) if the President is not appropriate who is?
gis ation Division
Office of Congressional Affairs
Distribution:
Original - OCA/Legislation Subject File: Covert Action
1 - D/OCA
1 -.OCA/Registry
1 - JBM/Si er
STAT OCA/Legislation, I (30 June 1986)
Approved For Release 2009/08/19: CIA-RDP89B00236R000500040002-3
 Approved For Release 2009/08/19: CIA-RDP89B00236R000500040002-3
Lee H. Hamilton
Angola: LO,
Open Ta
Covert Aid .-
The president talks openly about
providing covert assistance to rebels
of the National Union for the Total
Independence of Angola. (UNITA),
who oppose the Angolan government.
But this policy cannot succeed or be
sustained ? without the support if
Congress, and at present the presi-
dent's controversial plan does not
Concern about a U.S. role in tiee
Angola conflict dates from 1976,
when CIA involvement in that war led
Congress to pass the Clark Amend-
ment prohibiting U.S. assistance to
military and paramilitary groups In
Angola. Last year Congress repealed
the Clark Amendment The adminis-
tration supported this repeal - as. a
means of restoring the presidents
flexibility in foreign affairs, but :ft .
neither proposed nor supported fund-
ing for UNITA at that time. It has
? since changed policy. _ ?.
Under the law the president must
notify the House and Senate. intelli-
gence committees of planned covert
Congress cooperate. VMile the
actions. The committees' approval:is presi-
pot required for the president to pro- : dent needs flexibility in the implemen-
ceed with covert actions. The atimin s- tation of foreign policy. Congress has
trztion apparently decided to move for. a constitutional role to play in its
ward with a plan to provide UNITA and formulation and review. That role
its leader, Jonas Savi.?nbi, with covert must be respected if we are to have a
assistance this year despite Congress' sustainable policy in Angola that re-
resermtions on Il-tis issue. - fleas U.S. interests. -
My priniipal objection to this plae is a The Wit., a Democratic
procedural one Covert authority is in- r+tpre-sentative jrom Indiana, is
tended'-a a necessaril secret tool ,in the House inLeII erne
s pport of existing policy, not a 'means chairman of th
. an _ _ - - u
? ? .b j CUUM11ty W frftdHgt pUiCy
dramatically grid avoid public or con-
administration seems to be using its me rorergri ~a:rs t;omm:flee
gressional debate. Aiding UNITA is
frmdhg a war,- one of the powers of
Congress enumerated in the Constitu-
We need to resolve this procedural
issue so that important. substantive
questions ctn be debated. How will
aid to UNITA -serve U.S. interests?
How will ? it affect Angolan depen-
dence on Sr.fr: and Cuban support,
possbilities for a negotiated settle-.
meet in Namibia and U.S. credibility
as an honest broker in southern Afri-
ca? How will it be viewed in black
Africa? How will it affect substantial
U.S. commercial ties with Angola?
These questions should not be
avoided by simply notifing a handful of
members on the intelligence cornEnit-
tees. They are among the most serious.
issues for U.S. policy in Africa today.
They deserve to be weighed by Con-
gress as a whole. Legislation will soon
come before the House which would
restrict temporarily the president's au-
thority to conduct covert action in Air
gola and require open acknowledgment
and congressional approval of any pro-
posal to aid UNITA
The purpose of this ? bill is 'to
strengthen U.S. policy in Angola, Ito
ensure.that it reflects American val-
ues and interests. Debate in Congress
can help answer many of the ques-
tions concerning aid to UNITA and
? generate . the political backing the
ipresident will need if he Js to sustain
any policy in Angola over time. -'.
American foreign'policy is most
successful when the president and
abo;st covert action openly, so should -.
r,, cabers of C------
Approved For Release 2009/08/19: CIA-RDP89B00236R000500040002-3
circumvent a public debate in Congress
on a scant foreign policy decision by
calling this aid by a different name. .
Moreover, no serious effort has been
made to preserve the secrecy ' of this
per' change The president, the vice
pdent and other officials have Con-
finnedd it and disclosed details about the
uwriber and types of weapons to be
prodded This action is no longer "co-
''err under any reasonable definition of
that terra If the administration can talk