INTELLIGENCE OVERSIGHT ACT OF 1988

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M01264R000100080011-8
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 27, 2016
• Document Release Date: December 3, 2012
• Sequence Number: 11
• Publication Date: October 28, 1988
• Content Type: MEMO

STAT
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d SesessionESS l HOUSE OF REPRESENTATIVES RE P r00-?05
INTELLIGENCE OVERSIGHT ACT;QF~19.8.8~
JUNE 15, 1988.-Ordered to be printed
Mr. STOKES, from the Permanent Select Committee on Intelligence,
submitted the following
REPORT
together with
DISSENTING VIEWS
[To accompanytR. 382 which on December 18, 1987, was referred jointly to the
Permanent Select Committee on Intelligence and the Committee on Foreign Affairs]
The Permanent Select Committee on Intelligence, to whom was
referred the bill (H.R. 3822) to strengthen the system of congres-
sional oversight of the intelligence activities of the United States,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof
the following: .
SECTION 1. This Act may be cited as the "Intelligence Oversight Act of 1988".
SEc. 2. Section 662 of the Foreign Assistance Act of 1961 (22 U.S.C. 2422) is hereby
re ed.
Ec. 3. Section 501 of title V of the National Security Act of 1947 (50 U.S.C. 413) is
amended by striking the language contained -therein, and substituting the following
new sections:
"GENERAL PROVISIONS
"SEC. 501. (a) The President shall ensure that the Select Committee on Intelligence
of the Senate and the Permanent Select Committee on Intelligence of the House of
Representatives (hereinafter in this title referred to as the'intellijence committees') are
kept fully and currently informed of the intelligence activities of the United States,
including any significant anticipated intelligence activities, as required by this title:
Provided, That nothing contained in this title shall be construed as requiring the
approval of the intelligence committees as a condition precedent to the initiation of such
activities.
"(b) The President shall ensure that any illegal intelligence' activity is reported
promptly to the intelligence committees, as well as any corrective action that has
been taken or is planned in connection with such illegal activity.
19-006
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tions, low morale, and ultimately the exposure of a covert
operation through the investigation and hearing process.
So it seems to me that from the prespective of a profes-
sional intelligence officer they would want to know that
Congress has been informed, that it is a lesson they are
going to draw from the Iran-contra affair and something
that a DCI in the future owes them just as much as they
owe secrecy and security. (Statement of Dr. Alan E. Good-
man, February 24, 1988, Subcommittee on Legislation, Per-
manent Select Committee on Intelligence, Transcript, p.
182, 183).
Witnesses opposing rior notice often have preferred two exam-
ples to bolster their arpgument, both, ironically, related to Iran. The
examples are the preparations for the Iran hostage rescue mission
and the exfiltration from Iran of the U.S. diplomats who took
secret refuge in the Canadian Embassy in Tehran. Neither of these
events was reported to the Congress as covert action, the first, ac-
cording to Admiral Turner, because of the risk to the lives in-
volved, and the second according to Admiral Turner and Secretary
Carlucci, because the Canadians specifically asked that Congress
not be given notice.
There are two points to be noted in responding to these exam-
ples. First, each occurred prior to the enactment of the Oversight
Act of 1980, at a time when covert actions were reportable to eight
committees, and when the "Gang of Eight" mechanism did not
exist. Second, the proper response to such a request today is to. note
the requirements of American law with particular reference, if ap-
plicable, to the "Gang of Eight," and to describe in as detailed a
fashion as necessary the overwhelmingly salutory experience of the
intelligence community with the prior notice requirement. Such a
response is not, as some would urge, naive; it is, rather, a state-
ment of the reality of American government. History, including
recent history, provides ample evidence that policies which contra-
dict these realities or seek to avoid the sure course of our tradition-
al governmental processes were doomed to failure, not because
they needed the cloak of secrecy to succeed but because they were
wrong. And the result of such failure is more often than not long
.term damage to the interests of the United States, not just to the
future of a particular Administration or political party. Prior con-
sultation with those in Congress who have developed expertise in
the. conduct of such intelligence activities may not avoid all such
failures, but surely will avoid some. The Committee is persuaded
that the benefits of such consultation far outweigh the theoretical,
and unlikely, risk of intentional or inadvertent disclosure by the
senior leaders of Congress.
CONSTITUTIONAL CONSIDERATIONS
In testimony and written submissions before the Committee, offi-
cials of the Administration have expressed opposition to H.R. 3822
on the grounds that it would violate the U.S. Constitution, Specifi-
cally, the Department of Justice has stated that "enactment of this
legislation ... would unconstitutionally intrude on the President's
authority to conduct the foreign relations of the United States."
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Letter of John R. Bolton to Chairman Matthew F. McHugh, June 9,
1987 ("Bolton Letter") at 1.
The Committee notes that acts of Congress are presumptively
constitutional, Flemming v. Nestor, 363 U.S. 603, 617 (1960), and
that definitive determination of the constitutionality of legislation
lies within the power of the courts. Marbury v. Madison, 1 Cranch
137 (1803). Nevertheless, the Committee recognizes the gravity of
the Administration's concern and the importance of the legislation
in question. Accordingly, the Committee has given full and due
consideration to the constitutionality of H.R. 3822.
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SUMMARY
The focus of the Administration's concern is the provision in
H.R. 3822 that would require the President to notify the congres-
sional intelligence committees or leadership within no more than
48 hours of approving a covert action. Current law requires that, as
a general rule, prior notice must be given, but permits notice "in a
timely fashion" when prior notice is not given. 50 U.S.C. ? 413(b).
The Administration fears that the more definite provision would
impinge on the President's "plenary" authority in foreign affairs
and also would present specific obstacles to the President's conduct
of covert action.
The Administration does not dispute that Congress has a role in
foreign affairs. Rather, the Administration takes the view that
Congress' role is limited to discrete powers, while the President ex-
ercises plenary authority. However, there is no justification for this
view in the Constitution or the decisions of the Supreme Court.
The purported basis for the Administration's view has been repudi-
ated and never was binding.
As interpreted by the Supreme Court and analyzed by scholars,
the Constitution accords powers in the field of foreign affairs both
to the President and to Congress. According to the most reliable ex-
position of the constitutional scheme, there is a "zone of twilight"
between the Executive and Legislative in foreign affairs. Thus, the
President may exercise greatest discretion when granted authority
by Congress and, correspondingly, is most constrained when Con-
gress has limited or conditioned the President's authority. The
President and Congress possess "concurrent authority" whereby
Congress may regulate the President, as long as this regulation is
reasonably restrained to accommodate the President's authority.
Congress' specific authority to regulate the President's conduct of
covert action is demonstrated by the nature and origin of this ac-
tivity. Covert action occurs pursuant to the National Security Act
of 1947 and has consistently been defined thereunder as subject to
Congress' authority. In regulating covert action, Congress has ac-
commodated the President's authority, and H.R. 3822 represents a
refinement of this reasonable and restrained regulation.
Regarding the requirement in H.R. 3822 for prior notice of a
covert action-the gravamen of the Administration's concern-it
should be noted at the outset that this requirement is strictly pro-
cedural, not substantive. It does not dictate or limit what covert
action the President may conduct or how or when it may be con-
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ducted. The requirement simply is that the President provide
notice within a time certain.
The Administration's concern that this requirement would inter-
fere with the President's discretion is hypothetical since, as the Ad-
ministration states, the President since 1980 has provided prior
notice of covert action in "virtually every case." Indeed, the provi-
sion to which the Administration objects would not require prior
notice in every instance, but would permit delayed notice when
"time is of the essence," and additionally, the President could re-
strict the recipients of the notice when appropriate.
The Committee concludes that H.R. 3822 unquestionably com-
plies with the Constitution.
THE CONCERNS OF THE ADMINISTRATION
In testimony before the Senate Select Committee on Intelligence
regarding the Senate's companion legislation to H.R. 3822, an offi-
cial of the Justice Department defined the Administration's objec-
tion to H.R. 3822:
Our primary constitutional concern with S. 1721 arises
from the requirement that absolutely every finding be re-
ported to the congressional intelligence committees within
a fixed period of time.
While cooperation is the rule, the Department believes
that there may be instances where the President must be
able to initiate, direct, and control extremely sensitive na-
tional security activities. We believe this presidential au-
thority is protected by the Constitution, and that by pur-
porting to oblige the President, under any and all circum-
stances, to notify Congress of a covert action within a fixed
period of time, S. 1721 infringes on this constitutional pre-
rogative of the President.
Testimony of Charles J. Cooper, December 11, 1987 ("Cooper Testi-
mony") at 2-3 (emphasis in original).
The Administration's concern over the constitutionality of H.R.
3822 appears to arise from its general view of what the Constitu-
tion proivdesfor the operation of foreign affairs and from its specif-
ic expectations of what effect H.R. 3822 would have on the Presi-
dent's conduct of covert action. The Administration's general view
of the Constitution was expressed in a letter to the Committee
from a Justice Department Official:
[T]he Department believes that the Constitution, as con-
firmed by historical practice and clear statements of the
United States Supreme Court, leaves the conduct of for-
eign relations, which must include foreign intelligence op-
erations, to the President except intelligence operations, to
the President except insofar as the Constitution gives spe-
cific tasks to the Congress.
Bolton Letter at 4.
While this letter refers to the President's "exclusive and inalien-
able duties in the area of foreign affairs," Bolton Letter at 3, the
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Administration does not appear to contend that Congress lacks any
authority over foreign affairs. Rather, it concedes that Congress
has authority to oversee the activities of the executive in order to
consider and enact appropriate legislation. Bolton Letter at 6. The
Administration's position on this score is stated in a 1986 memo-
randum prepared for the Attorney General:
While we agree that Congress has some powers to curb a
President who persistently pursued a foreign policy that
Congress felt was seriously undermining the national in-
terest, especially in cases where Congress' constitutional
authority to declare war was implicated, well-settled his-
torical practice and legal precedents have confirmed the
President's dominant role in formulating, as well as carry-
ing out, the Nation's foreign policy.
Memorandum of Charles J. Cooper, December 17, 1986 ("Cooper
Memorandum") at 5 n. 5.
In addition to its general view of the Constitution, the Adminis-
tration's concern over H.R. 3822 stems from how it expects the bill
to affect the President's conduct of covert action. The Justice De-
partment stated:
Oversight of ongoing operations has the potential to
interfere with the ability of the President to discharge the
duties imposed on him by the Constitution. Accordingly,
the President must retain his constitutional discretion to
decide whether prior notice, in certain exceptional circum-
stances, is not appropriate.
Bolton Letter at 6.
Again, the Administration does not deny that Congress has a le-
gitimate role in the formulation of foreign policy. Cooper Testimo-
ny at 6. Indeed, the Administration has stated that the constitu-
tional bases for Congress' oversight powers are as explicit as those
for the President's foreign affairs powers. Cooper Memorandum at
16 n. 20. Thus, the Administration's position appears to be limited
to a concern that congresssional oversight not intrude on the Presi-
dent's discretion.
CONSTITUTIONAL PRINCIPLES
The most eloquent exposition of the Constitution's provisions for
foreign affairs also serves as the most effective refutation of the
Administration's view that H.R. 3822 would violate the Constitu-
tion. In his concurring opinion in Youngtown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson stated:
Loose and irresponsible use of adjectives colors all non-
legal and much legal discussion of presidential powers.
Inherent powers, "implied" powers, "incidental" powers,
"plenary" powers "war' powers and "emergency" powers
are used, often interchangeably and without fixed or ascer-
tainable meanings.
The vagueness and generality of the clauses that set
forth presidential powers afford a plausible basis for pres-
sures within and without an administration for presiden-
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tial action beyond that supported by those whose responsi-
bility it is to defend his actions in court. The claim of in-
herent and unrestricted presidential powers has long been
a persuasive dialectical weapon in political controversy.
343 U.S. at 646-647.
Subjected to Justice Jackson's analysis, the Administration's
view of what the Constitution provides for foreign affairs becomes
uncertain and untenable. It is at best tautological to say that the
President has "plenary authority" in foreign affairs, "subject only
to limits specifically set forth in the Constitution itself and to such
statutory limitations as the Constitution permits Congress to
impose by exercising one of its enumerated powers." Bolton Letter
at 4. Congress' enumerated powers include: the power to declare
war; the power to provide for the common defense and the general
welfare; the power to define offenses against the law of nations; the
power to make rules for the government; and the power to regulate
foreign commerce. U.S. Constitution, Article I, section 8. These in-
disputably are broad, far-reaching powers whose "limits" evade
easy definition. a Similarly, it eludes reason to compare these
powers quantitatively to the President's enumerated foreign affairs
powers: to command the military; to appoint and receive ambassa-
dors; and to make treaties, the latter two powers subject to the
Senate's consent. U.S. Constitution, Article II, section 2.
Indeed, Justice Jackson eschewed just such a quantitative com-
parison:
The actual art of governing under our Constitution does
not and cannot conform to judicial definitions of the power
of any of its branches based on isolated clauses or even
single Articles torn from context. While the Constitution
diffuses power the better to secure liberty, it also contem-
plates that practice will integrate the dispersed powers
into a workable government. It enjoins upon its branches
separateness but interdependence, autonomy but reciproci-
ty.
343 U.S. at 635. Thus, in place of the rigid categories of exclusive
powers that the Administration appears to espouse, Justice Jack-
son's conception consists of a pragmatic interplay of executive and
legislative powers. In his well-known phrase, there is a "zone of
twilight" between the President and Congress where they possess
"concurrent authority." 343 U.S. at 637. The President has inde-
pendent powers, but Congress may add to these powers by authoriz-
ing the President's actions or detract from these powers by restrict-
ing the President's actions. The Constitution does not separate
powers in terms of foreign and domestic affairs or accord primacy
to one branch of government or another on such a basis. The Con-
stitution separates powers in terms of executive, legislative, and ju-
dicial functions and provides that this separation will serve as a
system of checks and balances in all affairs of government.
The Administration asserts that these powers are somehow limited to "the exercise of legal
authority over American citizens." Cooper Memorandum at 3-4. However, the Administration
proffers no basis for such a limitation, and there is none; the assertion is fanciful and flawed.
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21
-Justice Jackson's conception of the Constitution represents a re-
markably uncanny and unerring refutation of the specific conten-
tions of the Administration regarding the constitutionality of H.R.
3822. According to the Administration, "[t]he principal source for
the President's wide and inherent discretion to act for the Nation
in foreign affairs is section 1 of article II of the Constitution where-
in it is stated: `The executive power shall be vested in a President
of the United States of America.' " Bolton Letter at 4. This was the
very contention made by the Executive in defense of its seizure of
the steel mills which the Court in Youngstown Sheet & T
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o. V.
W Sawyer found to be unconstitutional. In rejecting this contention,
er Justice Jackson compared the asserted powers of the Executive to
th
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e
prerogative exercised by George III" and stated, "I cannot
accept the view that this clause is a grant in bulk of all con bl
ese justify the seizure-also asserted by the Administration in defense
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ate o ice o t e generic powers thereafter stated." 343 U.S. at 641.
in- In a similar fashion, Justice Jackson disposed of the Executive's
the ex utivehpower but regard it as an allocation to the presidential
com- to Congress. . . [N]o doctrine that the Court could pro-
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the should indorse this argument. Nothing in our Constt t'
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343 U.S. at 642.
In addition to the President's executive and military powers, the
Administration bases its constitutional view on historical examples
and judicial decisions. Here, too, Justice Jackson's reasoning serves
as a disarming riposte:
A century and half of partisan debate and scholarly
speculation yields no net result but only supplies more or
less apt quotations from respected sources on each side of
any question. They largely cancel each other.
343 U.S. At 634-635.4
The most widely-touted basis for the Administration's view of the
Constitution is the Supreme Court's decision in United States v.
Curtiss-Wright Export Corp., 299 U.S. 304 (1936). There, the Court
referred to the President as "the sole organ of the federal govern-
ment in the field of international relations-a power which does
not require as a basis for its exercise an act of Congress, but which,
of course, like every other governmental power, must be exercised
* specifically, the Administration relies on The Federalist No. 75 for Alexander Hamilton's
broad view of presidential power. Bolton Letter at 4. However, elsewhere, the Administration
has recognized that James Madison took a different view in response to Hamilton's "overstate-
ments." Cooper Memorandum at 5 n. 5. As Justice Jackson said, "[a] Hamilton may be matched
against a Madison." 343 U.S. at 635 n. 1.
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in subordination to the applicable provisions of the Constitution."
299 U.S. at 319-320. The Administration, omitting reference to the
final, limiting clause of this statement, asserts that "Curtiss-Wright
thus confirms the President's inherent Article II authority to
engage in a wide range of extra-territorial foreign policy initia-
tives. . . ." Bolton Letter at 5.
Reliance on Curtiss-Wright as a basis for broad presidential
power requires isolating a single passage of the Court's opinion and
stripping it of its context in the case, in history, and in law. First,
the reference to the President as the "sole organ" of the Nation
was most likely intended to refer simply to the President's role as
the spokesperson of the federal government vis-a-vis other nations.
See E. Corwin, The President: Office and Powers 1787-1957 178
(1957). Second, the reference to the President acting in foreign af-
fairs without authority from Congress is obiter dictum, i.e., unnec-
essary to the decision and therefore not binding, as the Administra-
tion has recognized. Cooper Memorandum at 10 n. 11. The case
dealt with presidential action that was authorized by Congress, and
as Justice Jackson stated, "[i)t was intimated that the President
might act in internal affairs without congressional authority, but
not that he might act contrary to an Act of Congress." 343 U.S. at
636. Finally, the Supreme Court more recently has specifically
questioned the Curtiss-Wright language on which the Administra-
tion relies. Dames & Moore v. Regan, 453 U.S. 654, 661-662 (1981),
citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634
(1952) (Jackson, J., concurring).5
In Dames & Moore, the Court favored Justice Jackson's concep-
tion of the President's and Congress' foreign affairs powers in
interplay. 453 U.S. at 668-669. Congress may authorize the Presi-
dent to act, but even if it does not, the President is constrained by
Congress' "concurrent authority" stemming from its constitutional
powers. When Congress explicitly restricts the President's actions,
however, the President's discretion is "at its lowest ebb." Id., citing
343 U.S. at 637-638. That Congress has such authority in foreign
affairs was also acknowledged by the Supreme Court in Perez v.
Brownell, 356 U.S. 44, 57 (1958) ('Although there is in the Constitu-
tion no specific grant to Congress of power to enact legislation for
the effective regulation of foreign affairs, there can be no doubt of
the existence of this power in the law-making organ of the
Nation."), and most recently in Japan Whaling Assn. v. American
Cetacean Society, 92 L.Ed. 2d 166, 179 (1986) (recognizing "the pre-
mier role which both Congress and the Executive play" in foreign
relations).
On this basis, the Committee concludes that Congress' concur-
rent authority in foreign affairs is well established in constitution-
al law, and therefore there is no justification for the Administra-
tion's view that the President has "plenary" authority on which
The Administration claims that Curtiss-Wright was re-affirmed in United States v. Nixon,
418 U.S. 683 (1974). Bolton Letter at 5. However, that case dealt with executive privilege, cer-
tainly not invoked by the Administration with regard to covert-action notification. Moreover,
the Court never referred to Curtiss-Wright and recognized presidential responsibility in the spe
cific context of diplomatic and military secrets, not covert action. 418 U.S. at 710. Judicial defer-
ence in "political questions" which involve Congress and the President is wholly distinct from
any congressional deference to the President. 418 U.S. at 693.
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the
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H.R. 3822 would intrude. This general conclusion is confirmed in
the specific area of covert action.
COVERT ACTION AND THE CONSTITUTION
The nature and origin of the government's conduct of covert
action demonstrate that this activity lies well within Justice Jack-
son's zone of twilight where the President and Congress possess
concurrent authority. The President is subject to the regulation of
Congress, and Congress is constrained in its regulation by the
President's authority. In fact, Congress has regulated the Presi-
dent's use of covert action, and this regulation has been reasonable
and restrained. H.R. 3822 represents a refinement of this regula-
tion accommodating the President's discretion while fulfilling Con-
gress' constitutional role.
The legal authority for the conduct of covert action is an act of
Congress. The National Security Act of 1947 created the Central
Intelligence Agency and authorized it, among other activities, "to
perform such other functions and duties related to intelligence af-
fecting the national security as the National Securit Council may
from time to time direct." Section 102(dX5); 50 U.S.C. ? 403(dX5).
The Honorable Clark M. Clifford, serving as Special Counsel to
President Truman, participated in the drafting of this Act and has
testified regarding the intent of this provision of the Act:
The "other functions" that the CIA was to perform were
not specified, but we did expect that they would include
covert activities. These activities were intended to be sepa-
rate and distinct from the normal activities of the CIA,
and they were intended to be restricted in scope and pur-
pose.
Testimony of Clark M. Clifford Before the Senate Select Committee
on Intelligence, December 16, 1987 at 4.
After passage of the 1947 National Security Act, President
Truman approved the first authorization for the conduct of covert
action. National Security Council Directive 10/2 of June 18, 1948
relied on the authority of Section 102(dX5) of the Act in establish-
ing a covert action function in the government. Moreover, when
President Eisenhower reorganized this function in 1955, he also
relied on the authority of the Act, see National Security Directive
5412/2 of December 28, 1955, as did subsequent Presidents. See Ex-
ecutive Order 12333 of December 4, 1981, 46 Fed. Reg. 59941; Exec-
utive Order 12036 of January 24, 1978, 43 Fed. Reg. 3674; Executive
Order 11905 of February 18, 1976, 41 Fed. Reg. 7703.
Thus, it was by act of Congress that the means and authority for
the conduct of covert action came to be .6 It is correspondingly well
6 One member of the Committee has suggested that President Jefferson's assault against the
Barbary States serves as an example of covert action preceding the 1947 National Security Act
and occurring without congressional authority. This assault appears to have been more an overt
act of war than a covert action; even so, it is instructive to review how President Jefferson in-
formed Congress of the assault:
Unauthorized by the Constitution, without the sanction of Congress, to go beyond the
line of defense, the [American] vessel, being disabled from committing further hostil-
ities, was liberated with its crew.... I communicate all material information on this
subject, that in the exercise of this important function confided by the Constitution to
Continued
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within Congress' authority to regulate how this activity should
occur, as long as this regulation itself is reasonable and restrained
to accommodate the President's authority. Otherwise, the law
would be left in the untenable state where Congress could author-
ize or even prohibit an activity but not regulate it. The Constitu-
tion certainly does not compel this; rather, it permits and indeed
encourages Congress to legislate as it has. After all, it is Congress
that the Constitution vests with "all legislative powers," Article I,
section 1, as well as the power to make appropriations. Article I,
section 9.
The nature of covert action is also such that its conduct falls
within concurrent presidential and congressional authority. As
first authorized by President Truman, covert action was defined to
be "so planned and executed that any U.S. Government responsi-
bility ... is not evident to unauthorized persons and if uncovered
the U.S. Government can plausibly disclaim any responsibility
" National Security Council Directive 10/2 of June 18, 1948,
reprinted in Leary (ed.), The Central Intelligence Agency at 131-133.
And as important to the definition of covert action as this concept
of plausible deniability was the statement of what this activity was
not: "Such operations shall not include armed conflict by recog-
nized military forces, espionage, counter-espionage, and cover and
deception for military operations." Id.
This definition of covert action-as distinct from intelligence ac-
tivity-has remained consistent since President Truman s initial
directive. See Executive Order 12333 of December 4, 1981, 46 Fed.
Reg. 59941, 59953; Executive Order 12036 of January 24, 1978, 43
Fed. Reg. 3674, 3692; Executive Order 11905 of February 18, 1976,
41 Fed. Reg. 7703, 7705. In addition, the Intelligence Oversight Act
of 1980 recognized this distinction between intelligence activity and
covert action and established different requirements for the Presi-
dent to notify Congress of them. Compare Section 501(a) and Sec-
tion 501(b), 50 U.S.C. ?? 413(a) and 413(b). Moreover, H.R. 3822 con-
tinues this distinction.
The significance of the distinction between intelligence activity
and covert action resides in the Constitution's provisions governing
them. Intelligence activity resembles a means of engaging in diplo-
matic relations and thus relates to the President's specific power to
appoint ambassadors. U.S. Constitution, Article II, section 2. Covert
action, on the other hand, represents an amalgam of commerce and
warfare that falls within Justice Jackson's zone of twilight. See
Henkin, "Foreign Affairs and the Constitution," 66 Foreign Affairs
284, 304 (Winter 1987/88). As the highly-regarded author of this ar-
ticle stated:
From a constitutional perspective, it is difficult to make
a persuasive argument that Congress cannot regulate
these covert activities, whether under its power to regulate
commerce with foreign nations, to deal with the issues of
war and peace, or to define offenses against the law of na-
the legislature exclusively their judgment may form itself on a knowledge and consider-
ation of every circumstance of weight.
I Richardson, Messages and Papers of the Presidents, 314, quoted in Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. at 64243 (Jackson, J., concurring).
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shout
the
d author-
Cpnstitu-
this concept
r ponsibility 18, 948,
it, 1311133.
,at responsi-
if uncovered
'ority. As
. defined to
L duct falls
t Article I,
Article I,
w
indeed
j0d
pangress
activity was
ct by recog-
1 ;nd cover and
lotelligence ac-
,
rty 24, 1978, 3
teary 18, 1976,
e oversight Act
nee activity and
is for the Presi-
501(a) and Sec-
r, H.R. 3822 con-
lligence activity
I engaging in diplo-
K's specific power to
D of commerce and
e of twilight. See
" 66 Foreign Affairs
&fficult to make
. cannot regulate
power to regulate
the law of na-
in Youngstown Sheet & Tube
tions-or under the unarticulated "foreign affairs power"
which the Supreme Court found implied for Congress in
the notion of the national sovereignty of the United States.
Id. at 304-305 (citation omitted).
Again, the Administration does not contend that H.R. 3822 is
wholly unconstitutional. In addition to asserting limitations on
Congress' authority over foreign affairs-discussed previously-the
Administration questions the constitutionality of requiring the
President to notify Congress of all covert actions within a fixed
period of time:
Oversight of ongoing operations has the potential to
interfere with the ability of the President to discharge the
duties imposed on him by the Constitution. Accordingly,
the President must retain his constitutional discretion to
decide whether prior notice, in certain exceptional circum-
stances, is not appropriate.
Bolton Letter at 6. Thus, the constitutional question posed by the
Administration is whether Congress may require the President to
notify the congressional intelligence committees or leadership prior
to initiating' a covert action.
It bears emphasizing that the prior notice requirement is strictly
procedural, not substantive. It does not dictate or limit what covert
action the President may conduct. Similarly, it does not dictate or
limit how or when such action may be conducted. The requirement
simply is that the President provide notice every time within a cer-
tain time when covert action is approved. This has every appear-
ance of a reasonable and restrained regulation, as well as a neces-
sary and proper means of effecting Congress' constitutional powers,
pursuant to Article I, section 8.
Moreover, the notice requirement has been fashioned specifically
to accommodate the expressed concerns of the Administration re-
garding the exigencies of covert action. These exigencies, according
to the testimony of officials and the experience of the Committee,
include the need to respond immediately in an emergency, and the
need to respond in utmost secrecy in some situations.
According to the provisions of H.R. 3822, the President is not re-
quired to give prior notice of covert action in every instance, but
only in normal circumstances. Where "time is of the essence," the
bill authorizes the President to delay notice for 48 hours after ap-
proving a covert action. Thus, the President is unrestrained in re-
sponding to an emergency.
Similarly, the President may take measures to ensure secrecy
where appropriate. The bill authorizes notice to be provided, not to
the intelligence committees as a whole, but to the so-called Gang of
Eight-the leaders of the Congress and the committees-where ex-
traordinary circumstances pertain. Significantly, the bill defines
the circumstances for limiting or delaying notice, but leaves it
within the President's discretion to invoke this limited or delayed
notice.
In this way, H.R. 3822 resembles other legislation in the field of
foreign affairs where Congress has established specific time re-
quirements for presidential notice. Thus, the War Powers Resolu-
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26
tion requires notice to Congress within 48 hours of the introduction
of U.S. forces into hostilities or situations where imminent involve-
ment in hostilities is clearly indicated. 50 U.S.C. ? 1543(a). While
the Administration has also challenged the constitutionality of this
Resolution, its challenge does not focus on the 48-hour require-
ment, nor has this challenge received judicial approbation. Similar-
ly, the Arms Export Control Act sets specific time limits for the
President to notify Congress or proposed arms sales to foreign na-
tions and the President does not challenge these limits. See 22
U.S.C. ? 2776. Thus, there is nothing unusual or inherently offen-
sive with Congress requiring presidential notice by a time certain.
As stated, the Administration's constitutional concern stems
from the "potential" interference that the prior notice requirement
purportedly would pose. This potential in fact appears to be hypo-
thetical. As the Administration recognizes, the President has pro-
vided prior notice of approval of covert acton in "virtually every
case" since enactment of the 1980 Intelligence Oversight Act.
Bolton Letter at 6. No President has complained of any specific
burden imposed from providing such notice. Only the President's
January 1986 approval of arms sales to Iran lacked the requisite
notice to Congress. In the Committee's estimation, this exception to
compliance with the requirement proves the rule that the Presi-
dent's notification to Congress ensures good government. And good
government is the purpose and the product of our Constitution.
On this basis, the Committee determines that H.R. 3822 is consti-
tutional.
CONCLUSION
The bill reported by the Committee is a modest, balanced, and
measured attempt to clarify the requirements of the Intelligence
Oversight Act of 1980, the ambiguities of which apparently encour-
aged the Administration to engage in a major covert action without
the required fording and without notice to the Intelligence Commit-
tees-questionable activities which were compounded by the issu-
ance of a Department of Justice legal opinion claiming both statu-
tory and constitutional authority for them.
In almost all respects, the provisions of H.R. 3822 reflect internal
executive branch requirements regarding covert actions established
by the President in NSDD 286. The prior notice provision, while op-
posed by the Administration, actually reflects the historic practice
of covert action reporting and affords all due deference to the
President's responsibilities to maintain the security of sensitive op-
erations and to respond swiftly in exigent circumstances. These le-
gitimate presidential interests are accommodated by maintaining
the "Gang of Eight" reporting mechanism found in current law
and by authorizing the President to initiate a covert action without
a written finding and without prior notice to either the intelligence
committees or the "Gang of Eight" in extraordinary circumstances
when time is of the essence.
Enactment of H.R. 3822 will complement steps taken in recent
months by the Director of Central Intelligence, the Assistant to the
President for National Security Affairs, the Secretary of Defense,
and the President to insure thorough Executive Branch oversight
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ion
22
`klanced, and
,.coon without
reflect internal
jrlsion, while op-
,historic practice
erence to the
of sensitive op-
ces. These le-
by maintaining
in current law
action without
the intelligence
taken in recent
Assistant to the
Branch oversight
of intelligence activities and to establish trust and cooperation be-
tween the intelligence committees and the intelligence community.
Enactment of H.R. 3822 will also insure that the Congress is able
to effectively provide advice on and oversight of necessarily secret
activities which may have a profound impact on significant United
States foreign policy interests. Such a rule was clearly envisioned
by the drafters of the Constitution. The accuity of their vision has
been borne out by recent events. In the long run, prior consultation
and adequate oversight will contribute more to the national securi-
ty of the United States than congressional acquiescence in Execu-
tive Branch assertions of a nebulous constitutional right to unilat-
erally and secretly formulate and conduct the foreign policy of the
United States.
quire-
~Ilar-
e
I for the
~volve-
`phile
this
SECTION-BY-SECTION ANALYSIS
SECTION 2. REPEAL OF HUGHES-RYAN AMENDMENT
Section 2 of the bill repeals the Hughes-Ryan Amendment of
1974 so as to consolidate intelligence oversight provisions at a
single place in the law and expand the requirement for presiden-
tial approval of covert action to all entities of the U.S. Government
(to parellel Executive Order 12333).
Current statutory provisions for intelligence oversight include
the general requirements to inform the House and Senate Intelli-
gence Committees in Title V of the National Security Act of 1947,
as amended in 1980 (the Intelligence Oversight Act), and the re-
quirement of presidential approval for CIA covert action in section
662 of the Foreign Assistance Act of 1961, as amended in 1974 (22
U.S.C. 2422-the Hughes-Ryan Amendment). The differences in
language and scope between these provisions, which appear at dif-
ferent places in the statutes, have been a source of unnecessary
confusion and disagreement between the branches. Therefore, sec-
tion 2 of the bill would repeal the Hughes-Ryan Amendment in
order to substitute a new presidential approval requirement as an
integral part of a more coherent and comprehensive statutory over-
sight framework for covert action and other intelligence activities
to be set forth at one place in the law. The superseding presidential
approval requirement is contained in the proposed new sections 503
and 504(d) of the National Security Act of 1947, discussed below.
This change is intended to bring the statutes more closely into
line with the current executive order which requires presidential
approval for covert action by any component of the U.S. Govern-
ment, not just by the CIA. Section 3.1 of Executive Order 12333
(December 4, 1981) states that "the requirements of section 662 of
the Foreign Assistance Act of 1961, as amended (22 U.S.C. 2422)
and section 501 of the National Security Act of 1947, as amended
(50 U.S.C. 413), shall apply to all special activities as defined in this
Order." Replacing Hughes-Ryan, which applies only to the CIA,
with a comprehensive presidential approval requirement for covert
action by any U.S. Government entity gives statutory force to a
policy that has previously been a matter of executive discretion.
president's
y every
ht Act.
specific
be hypo-
has pro-
cement
offen-
certain.
stems
the Presi-
And good
ution.
is consti-
requisite
eption to
tly encour-
by the issu-
rboth statu-
ce Commit-
established
of Defense,
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3
"(b) To the extent consistent with due regard for the protection from unauthorized
disclosure of classified information relating to sensitive intelligence sources and
methods or other exceptionally sensitive matters, the Director of Central Intelli-
gence and the heads of all departments, agencies, and entities of the United States
Government involved in a covert action shall keep the intelligence committees fully
and currently informed of all covert actions which are the responsibility of, are en-
gaged in by, or are carried out for or on behalf of, any department, agency or entity
of the United States Government, and shall furnish to the intelligence committees
any information or material concerning covert actions which is in the possession,
custody or control of any department, agency, or entity of the United States Govern-
ment and which is requested by either of the intelligence committees in order to
carry out its authorized responsibilities. roved pursuant to subsec-
tion The President shall ensure that any finding app P
tion (a) shall be reported to the intelligence committees as soon as possible after
such approval and prior to the initiation of the covert action authorized by the find-
ing: Provided, That if the President determines it is essential to limit access to the
finding to meet extraordinary circumstances affecting vital interests of the United
States, such finding may be reported to the chairmen and ranking minority mem-
bers of the intelligence committees, the Speaker and minority leader of the House of
Representatives, and the majority and minority leaders of the Senate. In either
case, a copy of the finding, signed by the President, shall be provided to the chair-
man of each intelligence committee. Where access to a finding is limited to the
Members of Congress identified above, a statement of the reasons for limiting such
access shall also be provided.
"(2) In circumstances where time is of the essence and the President determines
that it is important to the national security interests of the United States to initiate
a covert action before the notice required by paragraph (1) can be given, such action
may be initiated without such notice.
"(3) The President shall ensure that notice of a covert action undertaken pursuant
to paragraph (2) is provided to the intelligence committees, or to the Members of
Congress identified in paragraph (1), as soon as possible, but in no event later than
forty-eight hours after the covert action has been authorized pursuant to subsection
(a). Such notice shall be accompanied by a statement of the President setting forth
why time was of the essence and why proceeding pursuant to paragraph (2) is im-
portant to the national security interests of the United States.
"(d) The President shall ensure that the intelligence committees, or, if applicable,
the Members of Congress specified in subsection (cXl), are notified of any significant
change in a previously-approved covert action, or any significant undertaking pursu-
ant to a previously approved finding, in the same manner as findings are reported
pursuant to subsection (c).
"(e) As used in.this title, the term `covert action' means an activity or activities
conducted by -an: element of the United States Government to influence political,
economic, or military conditions abroad so that the role of the United States Gov-
ernment is not intended to be apparent or acknowledged publicly, but does not in-
elude-
"(1) activities the primary purpose of which is to acquire intelligence, tradi-
tional counterintelligence activities, traditional activities to improve or main-
tain the operational security of United States Government programs, or admin-
istrative activities;
"(2) traditional diplomatic or military activities or routine support to such ac-
tivities;
- "(3) traditional law enforcement activities conducted by United States Gov-
ernment law enforcement agencies or routine support to such activities; or
"(4) activities to provide routine support to the overt activities (other than ac-
tivities described in paragraphs (1), (2), or (3)) of other United States Govern-
ment agencies abroad.
A request byr any department, agency, or entity of the United States to a foreign
government or a private citizen to-conduct..a covert action on behalf of the United
States shall be deemed to be a covert action.
"(f) No covert action may be conducted if it is intended to influence United States
political processes, public opinion, policies, or media.".
SEC. 4. Section 502 of title V of the National Security Act of 1947 (50 U.S.C. 414) is
redesignated as section 504 of such Act, and is amended by deleting "501" in subsec-
tion (aX2) of such section and inserting in lieu thereof "503" and by adding at the
end the following:
"(d) No funds appropriated for, or otherwise available to, any department, agency,
or entity of the United States Government, may be expended, or may be directed to
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a previously-approved findings. This would occur when the Presi-
dent authorizes a significant activity under a previously-approved
finding without changing the scope of the finding concerned.
(e) Definition of "covert action"
Subsection 503(e) contains a new definition of "covert action." It
is intended to supercede the current references to CIA "operations"
abroad under the Hughes-Ryan Amendment and "special activi-
ties" as defined by Executive Order 12333. The new definition
would generally reflect current practice as it has developed under
the Hughes-Ryan Amendment and the Executive Order definition
for activities conducted by the Central Intelligence Agency.
The need for a new definition of covert action arises from the
fact that there are now two definitions, one in law and one in exec-
utive order, the former explained and post-dated by the latter; and
neither of which encompasses all of the understood or asserted ex-
ceptions applied by the executive branch. Hughes-Ryan was intend-
ed to be only a temporary measure which would be further refined
by congressional review of covert action operations. In fact, since
the 1974 enactment of the Hughes-Ryan Amendment, the Central
Intelligence Agency in particular and the executive branch in gen-
eral have interpreted that legislation to narrow its apparent broad
sweep by applying subsequently-promulgated executive order defi-
nitions of special activities and have developed various exceptions,
based on interpretations of congressional intent, that have been ap-
plied as precedent in practice. The result has been a sometimes
confusing list of exceptions and case-by-case determinations that
have left both the executive and legislative branches uncertain as
to the outside parameters of covert action.
However, it seems clear to the Committee that certain activities
such as covert paramilitary operations, propaganda, political
action, election support and related activities have been generally
understood to be covert action. Other activities that may literally
fall within the definitions but for which it would be impractical to
seek presidential approval and report to Congress on a case-by-case
basis, have been assumed not to be covert action. To some extent,
Congress has known of and acquiesced in this practice and has
worked with the executive branch to develop mutually agreeable
understandings of the reach of the reporting requirements.
In attempting to reconcile the current definitions, the Committee
.decided that the inherent difficulty in describing large areas of
covert operations with particularly weighed in favor of a broad
general definition-i.e., the approach employed by the Hughes-
Ryan drafters-but with the addition of explicit enumerated excep-
tions to that general definition, the approach employed in a limited
way by the drafters of Executive Order 12333.
In accordance with this overall approach, the Committee intends
that the core definition of covert action be interpreted broadly.
That is why, for instance, the Committee has eliminated the re-
quirement, found in the definition of "special activities" under Ex-
ecutive Order 12333, that the activities be "in support of national
foreign policy objectives abroad." The Committee's experience since
1977 has been that the foreign policy interests of the United States
are so broad that any covert operation abroad is likely to be in sup-
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political
generally
ctical to
-trme extent,
agreeable
of a broad
the Hughes-
rated excep-
in a limited
ittee intends
reted broadly.
ated the re-
ties" under Ex-
ipport of national
J., experience since
the United States
ikely to be in sup-
port of some foreign policy objective. The Committee also wished to
remove the possibility of ambiguity presented by previous adminis-
tration arguments that sought to distinguish the foreign policy of
the United States from the defense policy of the United States.
Furthermore, this phrase is not so much a definitional element, as
a limitation of covert action, and one which is reflected in the pres-
idential determination required by section 503(a). Thus, the defini-
tion encompasses activities to influence conditions-be they politi-
cal, economic or military-overseas and focuses on the objective
features of the activity, rather than on a formal relationship to for-
eign policy purposes, as the controlling test in determining which
activities constitute covert action.
Further, the reference in the body of the definition to activities
"conducted by an element of the United States Government"
means that the activity or activities to be conducted must be exam-
ined in terms of each element of the United States Government
that will be involved in a particular area to determine if the activi-
ty of that element is a covert action. It may be that an activity
which is not a covert activity may be supported by an element of
the government, for example an intelligence element, whose par-
ticipation does constitute a covert action. Thus, an operation con-
ducted by the uniformed military forces may not be a covert action
but the unattributable efforts of the CIA in support of that activity
may be a covert action.
This raises another key element of the core definition, the mean-
ing of covertness. Covert action must be an activity where the "role
of the United States Government is not intended to be apparent or
acknowledged publicly." It is important to distinguish in this con-
text between operations that are merely clandestine and those that
are covert. Clandestine activities are those that are conducted se-
cretly but which, at some time after their completion, may be ac-
knowledged by the United States. A good example is a clandestine
military deployment which, although kept secret before it occurs,
can be acknowledged after it has taken place, in part because, at
that point, it cannot be kept secret.
A covert operation may or may not be clandestine, i.e., the activi-
ty itself may or may not be visible or public. Its essential nature,
however, is that the role of the United States in the activity is not
intended to be acknowledged. The U.S., in other words, seeks a
form of plausible denial to the outside world. This deniability
would not, of course, apply to those within the United States Gov-
ernment who have a need to know about such activities, including
the intelligence oversight committees.
Thus, in drafting the basic definition of a covert action as it Will..
apply to all entities of the government, the Committee intends to
retain the same level of general comprehensiveness as is now ap-
plied to determine whether activities constitute covert action oper-
ations, subject, however, to certain exceptions that are explained
further below. The Committee further intends that the definition
apply uniformly and equally to all elements of the U.S. Govern-
ment.
Paragraph (e)(1) is the first exception to the general definition of
covert action. It lists first "activities the primary purpose of which
is to acquire intelligence." This represents a change from the lan-
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guage of the Hughes-Ryan Amendment, which excluded activity
only if its sole purpose was the collection of necessary intelligence.
The primary purpose test nonetheless reflects actual practice sine
1974. It appears that neither the Central Intelligence Agency nor
the Congress have actually applied the sole-purpose test since the
enactment of the Hughes-Ryan Amendment. What has applied is a
rule of reason that treats as intelligence collection activities such
as intelligence liaison relationships that produce intelligence indi-
rectly or have other incidental results. The Committee, by requir-
ing a primary purpose test, however, does not seek to create an
avenue for designing operations to avoid the covert action require-
ments or to change the high threshold traditionally distinguishing
covert action from intelligence collection operations. Of course, it is
expected that this latter category of activities, while not subject to
the covert action reporting requirements, will be brought to the at-
tention of the Committee in the course of keeping it fully and cur-
rently informed.
Paragraph (exl) also excludes from the definition of covert action
operations "traditional counterintelligence activities." The Commit-
tee uses the word "traditional" seveal times throughout the new
definition. It is intended to be understood in the sense of being
usual, accepted, customary practice-practice that is acknowledged
and understood to fall within accepted parameters. This does not
mean that every possible variation of counterintelligence operation
or technique must have an exact precedent to be included within
the exception. However, it does require that "traditional" counter-
intelligence hew to the purpose of, in the words of the executive
order, gathering information or conducting activities "to protect
against espionage, other intelligence activities, sabotage, or assassi-
nations conducted for or on behalf of foreign powers, organizations,
or persons or international terrorist activities." Such activities gen-
erally include double agent operations and operations to frustrate
intelligence collection activities by hostile foreign powers. Again, it
is expected that these activities will be brought to the Committee's
attention in its ongoing oversight of intelligence activities.
Traditional counterintelligence, however, does not include the
use of a counterintelligence operation or counterintelligence assets
for purposes other than those that are described as counterintelli-
gence above. For instance, efforts to deceive a hostile foreign power
for purposes other than collecting information or frustrating its in-
telligence operations, or efforts to influence events or individuals
beyond the ordinary scope of counterintelligence concerns are not
considered to be traditional counterintelligence activities.
Paragraph (01) also lists "traditional activities to improve or
maintain the operational security of United States Government
programs" as an exception from the definition of covert action.
This phrase encompasses most programs and activities of the De-
partment of Defense or other departments or agencies of the
United States Government that are intended to improve or main-
tain the security of their personnel, activities and facilities.
Operational security includes a variety of techniques, such as
concealment of military activities and physical and communica-
tions security activities, whose purpose is to deny hostile powers
access to, or information concerning, U.S. activities. Many, but not
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Q'by requir-
"' create an
k
lion require-
nguishing
course, it is
~t subject to
t to the at-
ly and cur-
covert action
The Commit-
Sam of being
acknowledged
This does not
nee operation
eluded within
,nal" counter-
the executive
es "to protect
age, or assassi-
organizations,
activities gen-
to frustrate
powers. Again, it
the Committee's
ivities.
not include the
telligence assets
as counterintelli-
e foreign power
frustrating its in-
its or individuals
concerns are not
vities.
'es to improve or
,States Government
of covert action.
vities of the De-
Vr agencies of the
improve or main-
ud facilities.
techniques, such as
l and communica-
deny hostile powers
zties. Many, but not
all, of the military's camouflage, concealment, cover and deception
operations are included in this category. Thus, the use of U.S. mili-
tary resources, such as items of military equipment, communica-
tions systems, etc., for operational security purposes falls within
the ambit of the exception.
However, when efforts at deception-both in terms of the meth-
ods employed and of the intended effect on military, political or
economic conditions overseas-are such that they depart from the
essential purpose of tactical protection of United States military ac-
tivities and covertly attempt to change foreign perceptions in a
strategic or significant fashion, they should be considered covert
action.
Operational security activities, when conducted by the military,
are a subset of military activities, described further below. They
have been exempted by this definition because of concern that
some legitimate military operational security activities arguably
could be considered covert action operations. While the Committee
does not intend to convert security activities into covert action, nei-
ther does the Committee intend that military activities that should
be considered covert action operations may be considered to be ex-
cluded from the definition of covert action simply by calling them
traditional military operational security activities. However, the
Committee does not intend that such matters as concealing manu-
evers of military units by using cover and deception, the use of dif-
ferent frequencies in peacetime, etc., should be considered covert
action.
The final element excluded under paragraph (ex1) is "adminis-
trative activities." This term is intended to include activities to pay
and support the presence of U.S. intelligence or other elements
overseas and in the United States. Such activities should not be
considered to be covert action as long as they are restricted to pro-
viding support for U.S. employees who are capable of performing a
range of tasks, including covert action operations. The use of this
exception applies only to employees of the United States Govern-
ment and related housing, pay, benefits and allowances that per-
tain to them.
Paragraph (eX2) exempts "traditional diplomatic activities" from
the definition of covert action. It includes the use of diplomatic
channels or personnel to pass messages and conduct negotiations
between the United States and other governments or foreign enti-
ties. Traditional diplomatic activities, in this context, include ac-
tivities long understood and accepted to be diplomatic in nature.
They do not include activities that cannot reasonably be considered
to be- diplomatic in character, despite characterizations by some ad-
ministration officials, such as the covert sales of arms to Iran. Such
an operation went well beyond the traditional and accepted defini-
tion of diplomacy because of the means employed.
Paragraph (eX2) also refers to "routine support" to traditional
diplomatic activities. Routine, in this sense, means ordinary sup-
port. What is contemplated by this phrase is relatively minor, often
administrative activities that are an adjunct to a diplomatic activi-
ty. An example would be the use of intelligence communications fa-
cilities or personnel to pass diplomatic messages, or providing a
safe house for a meeting between U.S. officials and foreign officials.
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What is not included would be activities of intelligence elements
that in themselves represent separate efforts to covertly influence
events overseas as well as provide support to diplomatic activities.
In other words, routine support cannot become a "backdoor" in-
strument of covert action.
Paragraph (eX2) also exempts "traditional military activities"
and "routine support" to such activities. Traditional military ac-
tivities encompass almost every use of the uniformed military
forces. This does not, however, preclude the possibility that mili-
tary units, whether or not they are intelligence units, could be used
in operations that constitute covert action and would require a
finding. This emphasizes the importance of examining a particular
military activity in light of its specific purpose, the manner in
which it is to be accomplished, and the role-including the ques-
tion of attribution to the U.S. Government or to the entity in-
volved-of the particular element that will perform it.
This qualification is best understood in connection with the Com-
mittee's intent, mentioned above, of defining covert action so as to
ensure that activities for which CIA would have to obtain a covert
action finding under current law and practice will require a find-
ing under subsection 503(e) whether performed by CIA, a military
unit or some other element of the U.S. Government.
An area of activity that must be examined carefully in this con-
text is rescue missions or counterterrorist activity. Each element
that must participate in some way in such activities must be
looked at to determine whether its role falls within the definition
of covert action or one of the exceptions. For example, an overt
military operation such as the 1980 Iran rescue mission is not a
covert action. That operation was conducted by uniformed military
units and was always intended to be acknowledged by the United
States. However, CIA logistical support (not intelligence collection)
to the rescue operation in Tehran was not intended to be acknowl-
edged and was covert action. The Committee intends that rescue mis-
sions and counterterrorism activities-by whatever element con-
ducted-continue to be scrutinized carefully to ascertain whether
or not they constitute covert action in light of appropriate CIA
precedent.
The Committee also notes, however, that routine support to mili-
tary activities may include a limited range of secret, non-active as-
sistance to military operations such as the provision of false docu-
mentation or foreign currency. What is not included in routine sup-
port would be activities of intelligence elements that in themselves
represent separate efforts to covertly influence events overseas as
well as provide support to military activities. In other words, rou-
tine support cannot become a "backdoor" instrument of covert
action.
Paragraph (e)(3) exempts "traditional law enforcement activities
conducted by United States Government law enforcement agencies
or routine support to such activities." Traditional law enforcement
activities include activities such as those of the FBI to apprehend,
or otherwise cooperate with foreign law enforcement authorities in
the apprehension of, those who have violated U.S. laws or the laws
of other nations. It includes Drug Enforcement Agency and State
Department assistance to other countries in the destruction or
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elements
ckdoor" in-
activities"
military ac-
that mili-
could be.used
d require a
e particular
tie manner in
the entity in-
with the Com-
action so as to
obtain a covert
require a find-
CIA, a military
ly in this con-
Each element
vities must be
the definition
70ample, an overt
informed military
li ence collection)
ed to be acknowl-
that rescue mis-
er element con-
ascertain whether
of appropriate CIA
e support to mili-
pcret, non-active as-
ion of false docu-
uded in routine sup-
that in themselves
forcement activities
enforcement agencies
e FBI to apprehend,
Of U.S. laws or the laws
On the destruction or
interdiction of narcotics supplies or products. In each case, it is nec-
essary to distinguish activities which are to be acknowledged by
the United States from those which are not and which otherwise
meet the test of a covert action. In other words, the fact that an
operation is conducted by a law enforcement agency does not alone
determine whether the operation is a traditional law enforcement
activity.
Routine support to such activities that would not rise to the level
of a covert action would include the loan of equipment or certain
kinds of training (or example, training in the use of loaned equip-
ment) to a law enforcement agency by an intelligence agency. As
the case of routine support to traditional diplomatic activities,
what is not incuded in the concept of routine support to traditional
law enforcement activities would be activities of intelligence ele-
ments that in themselves represent separate efforts to covertly in-
fluence events overseas as well as provide support to law enforce-
ment activities. Routine support cannot become a backdoor instru-
ment of covert action.
Paragraph (eX4) provides a limited exception for activities not
covered by paragraph (e) (1), (2) or (3). The exception permits "rou-
tine support" to the "overt activities" of "other United States Gov-
ernment agencies abroad." The only example of which the Commit-
tee is aware that meet this definition involved the loan of equip-
ment by an intelligence agency to another U.S. Government ele-
ment to assist it in the conduct of its authorized activities. Routine
support has the same general meaning and limitations as that
term is used above.
The last sentence of the definition states that a request by any
department, agency or entity of the United States to a foreign gov-
ernment or a private citizen to conduct a covert action of behalf of
the United States shall be deemed to be a covert action. This re-
quirement is intended to prevent the conduct of a covert action at
the specific request of the United States that bypasses the require-
ments for Administration review, presidential approval, and con-
sultation with the intelligence committees. Thus, it encompasses
within the definition of covert action the indirect conduct of covert
action through another country and ensures that the same review,
accountability, and oversight will apply as in the case of a covert
action conducted entirely by the United States or with another gov-
ernment.
(f) Influencing United States political processes
Section 503(f) would maintain current Executive Order restric-
tions (section 3.4(h) of Executive Order 12333) that preclude a find-
ing from authorizing any action intended to influence domestic po-
litical processes, public opinion, policies, or media. While it is rec-
ognized that activities intended to have their impact abroad may
be reported in the U.S. media, it is intended that no covert action
may have as a purpose influencing political activity, policy, or
media within the United States by instituting or influencing events
which are undertaken either inside or outside the United States.
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