COVERT ACTION AND CONGRESSIONAL OVERSIGHT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B00017R000200380004-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 22, 2016
• Document Release Date: December 8, 2011
• Sequence Number: 4
• Content Type: MISC

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COVERT ACTION AND CONGRESSIONAL OVERSIGHT
by
Dr. Richard H. Shultz, Jr.
* Testimony prepared for the House Permanent Select Committee On
Intelligence, Subcommittee on Legislation (April 8, 1987).
* Richard H. Shultz, Jr. is an Associate Professor of International
Politics, International Security Studies Program, The Fletcher School
of Law and Diplomacy. He is also at present a fellow of the Hoover
Institution on War, Revolution, and Peace and is preparing a book on
Soviet promotion of insurgent movements in the Third World. He is a
consultant to various U.S. government offices concerned with national
security issues, and is a frequent lecturer to U.S. war colleges and
military academies. His professional interests include U.S. foreign
and national security policy, contemporary military strategy,
intelligence and national security, international and state sponsored
terrorism, unconventional war and power projection in the Third World,
and propaganda and political warfare. His books include Hydra of
Carnage, with Uri Ra'anan, et al.; Dezinformatsia: Active Measures in
Soviet Strategy, with Roy Godson; Special Operations in U.S. Strategy,
with Frank R. Barnett and B. Hugh Tovar; and Lessons From An
Unconventional War, with Richard Hunt.
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Covert action is defined as an attempt to influence politics and
the course of events in other countries without revealing one's
involvement or at least by maintaining plausible deniabilty. Over the
last two decades a spirited debate has taken place within the U.S.
body politic over the place of covert action in the foreign policy
arena. A major issue has been whether and to what degree it is
appropriate for a democracy to undertake secret interference in the
politics'of another country. An important and related question, the
subject of H.R.1013, i5 the extent to which the President has
constitutional authority to employ covert action as an instrument of
foreign policy.
In response to the question of whether a democracy should engage
in covert action, four quite different perspectives have emerged:
o Under no circumstances should the United States be involved in
covert action. It violates our democratic values and permits the
President to undertake foreign policy initiatives without first
testing their viability in the marketplace of public discussion.
o Covert action is an instrument of last resort. It should be
utilized after all else fails and the other alternatives are
either to send in the marines or remain passive.
o The United States should only carry out non-controversial
covert actions. In other words, only do covertly that which, if
it becomes public knowledge, will cause very little
embarrassment.
o Covert action is an instrument of foreign policy. All foreign
policy is, in effect, has to address the nexus between foreign
and domestic policy in other countries. This can be carried out
both overtly and covertly. Covert action as a tool of foreign
policy can be either a carrot or stick.
The issue is to what degree the President has the Constitutional
authority to exercise this instrument of foreign policy. In my
estimation the proposed amendment to section 501 of the National
Security Act of 1947, as contained in H.R.1013, infringes on Executive
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authority. It goes beyond separation of powers, as understood by the
Framers of the Constitution. Additionally, it appears to be
reminiscent of the way Congressional oversight proceeded during the
mid-1970s. Recall that by the end of the decade Congress itself was
impelled to modify these earlier legislative enactments. The
Intelligence Oversight Act of 1980 is a case in point.
PRESIDENTIAL AUTHORITY AND FOREIGN POLICY
The Framers of the Constitution were cautious both in how they
defined the powers of government and the way they distributed these
powers among the three branches that had been constructed to use them.
They were also of the opinion that certain branches were better
equipped to exercise specific powers than others. Separation of
powers, therefore, was a double-edged sword. It could prevent power
abuse, but also provided for power to be more effectively exercised.
This was apparent in the Framers' deliberations over the role and
powers of the executive branch, particularly in the areas of national
security and foreign policy. Influencing the Framer's judgment was
the ineffectiveness of the Congress in these issues under the Articles
of Confederation. As a deliberative and legislative body, the Framers
viewed Congress as ill-equipped to act with the energy and dispatch
required in international relations. The composition and modus
operandi of the legislative branch made timely action either difficult
or impossible. Consequently, separation of powers resulted in the
Framers designating the executive branch as the more appropriate body
to exercise control over foreign policy.
Nevertheless, the Framers also recognized that while separation
of powers established a division of authority and responsibility, it
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was inevitable that at different times and in different situations the
degree to which the three branches exercised authority and checked one
another would vary. The changing role of the President and Congress
in the arena of intelligence presents a good example.
From 1947 to the end of the 1960s, Congress did not actively
pursue its formal oversight authority. There was a consensus both
over the parameters of American foreign policy and recognition that
its conduct was the responsibility of the executive. Intelligence was
viewed as an instrument of foreign policy and Congress was reticent to
impinge upon the constitutional authority of the President. Only a
few members of each house of Congress informally took part in the
oversight of intelligence, and by choice their involvement was held to
a minimum.
The events of the 1970s reversed Congressional reticence and the
mechanism of oversight, which always existed, came to be vigorously
exercised. Clearly, the pendulum began to swing away from
Presidential dominance. Underlying this was the shattering of the
post-World War II consensus over the course of U.S. foreign policy.
Congressional restraint turned into activism, and this was no where
more evident than in the field of intelligence oversight.
By the second half of the decade, many argued that Congress had
pushed the pendulum too far, particularly with respect to the
President's ability to employ covert action as an instrum^-_nt of
foreign policy. This argument centered around the Hughes-Ryan
Amendment to the 1974 Foreign Assistan::e Act, which called for
explicit Congressional oversignt of the President's use of covert
action. Hughes-R-:%n required that the President notify the
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appropriate Congressional committees prior to or immediately upon
initiation of a covert action. Under the prescription of the
amendment a total of eight committees had to be informed of each
planned covert operation.
Hughes-Ryan did not give Congress veto authority over the
President's use of covert action. However, the fact that the members
of eight committees were in the know made it very difficult to
guarantee that covert programs would remain secret. The amendment
gave any member of the eight committees a de facto veto over any
proposed covert action he or she might find objectionable. The result
was that Presidents would be willing to undertake only
noncontroversial covert actions, which, if they became public
knowledge, would cause little political discord.
Did Hughes-Ryan push the pendulum too far in terms of separation
of powers and Presidential authority? Article II9 section I of the
Constitution places executive power in the President. This is the
source of the President's wide and inherent discretion to act for the
United States in foreign and national security affairs. Of course,
this is subject to those limits the Constitution delegates to the
Congress. Nevertheless, even before the Constitution was ratified, it
was asserted in The Federalist that the President's executive power
would include the conduct of foreign policy. Historical practice and
legal precedents have confirmed this authority in formulating and
implementing foreign policy.
While in certain areas the President's power in foreign policy
may be constrained constitutionally, the conduct of secret
intelligence operations lies at the center of executive authority.
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This does not mean that Congress is excluded, as the oversight process
has demonstrated. In fact, the wording of the Hughes-Ryan amendment
itself recognized this fact. It did not give Congress formal veto
power over a covert action authorized by the President, although the
way the amendment was constructed an unauthorized and de facto veto
power ensued. The 1980 amendment to the National Security Act of 1947
not only sought to correct this situation, but recognized the ultimate
discretionary power of the President in covert action. Consequently,
while the Senate Select Committee on -Intelligence (SSCI) and House
Permanent Select Committee on Intelligence (HPSCI) were to be kept
fully and currently informed about covert actions initialed by the
President, this was within the framework of what was "consistent with
all applicable authorities and duties, including those conferred by
the Constitution upon the executive and legislative branches." The
language in quotations is precisely that which H.R.1013 seeks to
excise from the National Security Act of 1947.
In sum, the Framers assigned to the President a broad and
independent Constitutional authority to conduct foreign policy. In
retrospect, it is now generally held that in the 1970s Congress pushed
the pendulum to the point where the Framers' concept of separation of
powers was circumvented. This was quite apparent in the direct and
indirect impact of the Hughes-Ryan amendment. The Intelligence
Oversight Act of 1980 restored the balance. The Hughes-Ryan
amendment, along with other legislative efforts (including the Foreign
Intelligence Surveillance Act of 1978 and the proposed but never
enacted charter legislation drafted by the SSCI (5.2525)), dominated
the Congressional oversight process of the 1970s. These measures were
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enacted during a period highly charged with political crisis and
executive-legislative confrontation. Beginning in 1979-1980, in a
period of greater political tranquility, certain of these legislative
actions were either revised or as in the case of the proposed charter
never enacted. H.R.1013 would result in a repetition of the oversight
pattern of the early mid-1970s.
POLITICAL CRISIS AND CONGRESSIONAL OVERSIGHT THE HUGHES-RYAN AMENDMENT AND H.R.1013
In many respects, the Hughes-Ryan Amendment and H.R.1013 have a
great deal in common. To begin with, both grew out of a highly
charged political crisis. Recall the climate surrounding the
enactment of Hughes-Ryan. In 1971, the Pentagon Papers were published
in the midst of the domestic turmoil over the Vietnam War. The next
year was marked by the beginning of the Watergate scandal which
resulted in the resignation of President Nixon in 1974. At that time,
the controversial covert program in Chile was exposed, as were certain
domestic intelligence operations run by the CIA. This led to the
creation of House and Senate special committees to investigate past
and present activities of the intelligence community. In many ways,
the Chairman of the Senate special committee, the late Senator Frank
Church, summed up the political tenor of this oversight period in his
charge that the CIA was a "rogue elephant" out of control. Neither
his committee nor the sister committee in the House found evidence to
support this claim. The broad charge of massive and systematic abuses
and illegal activities by the intelligence community was never
documented.
Nearly everyone looking at the oversight process at that time
recommended some kind of permanent committee system for intelligence.
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Security Act of 1947 was amended to provide both Congressional
oversight and Presidential flexibility in special situations. Section
501(a) provided the following:
o The SSCI and HPSCI would be kept fully and currently informed
of anticipated covert actions. This did not require their
approval in order to initiate the operation.
o The President could limit prior notice to the ranking members
of SSCI and HPSCI, the speaker and minority leader of the House
and majority and minority leaders in the Senate if extraordinary
circumstances existed.
For those situations in which the President determined that to comply
with section 501(a) would endanger lives and/or operational security,
section 501(b) required the President to inform the SSCI and HPSCI in
a "timely fashion." This was to include a statement of the reasons
for not giving prior notice. Finally, the 1980 legislation also
required reporting of all intelligence failures.
In my estimation, the Intelligence Oversight Act recognized the
inherent authority of the President to withhold notification. It was
considered within his constitutional authority. It did not view with-
holding notification as the rule, but more of an exception.
Consequently, the act sought to strike a balance. It also implied
that the Congress understood the need for Presidential flexibility to
act with dispatch and secrecy if the situation so warranted.
Although it would be unfair to compare the Iran crisis with the
situation in the early/mid 1970s, H.R.1013 is, in a fashion similar to
Hughes-Ryan. It is undertaking legislative restrictions in the heat
of political crisis. At issue today is whether the Iran events
necessitate a revamping of the 1980 oversight requirements. In my
estimation these changes recognized that to set arbitrary time limits
infringe on the President's ability to conduct particularly sensitive
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But it had become clear by the end of the seventies that speculation,
like that of Senator Church, was unfounded and, further, that it
created an atmosphere in which balanced judgment suffered. By the end
of the decade, the SSCI and HPSCI more prudently concentrated on
correcting the real errors and structural deficiencies of the
intelligence community. In effect, oversight began to shift away from
its legitimate agenda toward an exclusive concern with rules and
restraints on the intelligence community and the President's ability
to work with it. This was reflected, in the +irst place, in the
Senate's rejection of the charter legislation, which contained a set
of complex regulations and prohibitions to rule and restrain every
activity of U.S. intelligence.
In the 1980s, as the pendulum began to swing back the agenda
broadened to include strengthening the performance of U.S.
intelligence. A series of intelligence failures revealed the price of
ignoring the requirements necessary to meet hostile intelligence
services and to stand up to national security challenges facing the
United States. These included the inability to collect sufficient
information about the Iranian and Nicaraguan revolutions in order to
provide early warning, various counterintelligence failures, mis-
estimations of Soviet military power, and the non-existence of any
effective capability covertly to influence events abroad.
The Intelligence Oversight Act of 19BO demonstrated both
Congressional concern over these intelligence failures and
deficiencies, as well as recognition of the fact that in certain
situations the President requires discretionary power to employ covert
action as an instrument of foreign policy. Consequently, the National
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covert operations. While we can debate over whether or not the Iran
activities met the stipulations laid down in section 501(b), we should
not change the existing procedures. There clearly are operations that
are so sensitive, for instance in the counterterrorism arena, that
security, secrecy, and dispatch are crucial. We should not lose sight
of this in the current political crisis and executive-legislative
confrontation. Certainly the forty-eight hour requirement contained
in H.R.1013 is a much too tight restriction and denies operational
flexibility necessary for dealing with situations which involve grave
danger to personal safety or which require speed and stealth. It
restricts the range of secret options available to the President to
rapid military strike operations. The emphasis thus far on short term
and time sensitive actions does not imply that all covert operations
of a longer duration require prior notification. While this may
generally be the case, one can imagine circumstances where this would
not be true.
In sum, if history is to teach us anything, it is to avoid
repeating those mistakes that undermined the nation's capacity to
defend itself against adversaries in the past. The Hughes-Ryan
amendment had this affect by denying the President the option to
employ covert action as an instrument of policy in controversial
situations. H.R.1013 is bound follow the same course. Congress
should recognize that there are instances in which executive
notification requires delay. In the midst of the political crisis
surrounding the Iran events, it is not prudent to create legislative
restrictions and rigidity that the nation may greatly regret later and
which Congress may find it necessary either to revise or completely
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reverse. What is worrysome are the foreign policy failures that might
occur in the period between the enactment of new restrictions
contained in H.R.1013 and some future Congressional revision of these
regulations.
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