CONSTITUTIONAL AND STATUTORY AUTHORITY TO CONDUCT FOREIGN INTELLIGENCE ACTIVITIES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP78M02660R000200010042-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 55
• Document Creation Date: December 16, 2016
• Document Release Date: December 2, 2004
• Sequence Number: 42
• Publication Date: September 5, 1975
• Content Type: REPORT

STAT
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CONSTITUTIONAL AND STATUTORY AUTHORITY
TO CONDUCT
FOREIGN INTELLIGENCE ACTIVITIES
*Authority for Activities Relating to Collection
of Foreign Intelligence
*Authority to Engage in Covert Operations
*Limitations on the Authority to Reorganize the
Civilian Intelligence Community
Prepared by the Staff of the
Legal Research Project for
The Coordination Staff of the
Intelligence Community Staff
roject Director
September 5, 1975
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CONSTITUTIONAL AND STATUTORY AUTHORITY
TO CONDUCT
FOREIGN INTELLIGENCE ACITIVITIES
Table of Contents
I.
II.
INTRODUCTION.
ANALYSIS
OF SOME OF THE ISSUES.
Page
1
1.
Presidential Powers.
3
2.
Presidential Powers and Intelligence Activities.
5
3.
Covert Operations.
6
4.
Covert Operations and International Law.
9
III.
SUMMARY OF CONCLUSIONS.
A.
Authority for Activities Relating to the
Collection of Foreign Intelligence.
11
B.
Authority Relating to Covert Operations.
12
C.
Limitations on the Reorganization of the
Civilian Intelligence Community.
13
IV.
DETAILED ANALYSIS OF ISSUES.
A.
Authority for Activities Related to the
Collection of Foreign Intelligence.
1. Presidential Powers Generally.
15
2. Authority to Collect Foreign Intelligence.
16
3. Authority Under the National Security Act.
18
4. Restrictions on Executive Authority.
20
5. DCI Authority.
22
6. Protection of Sources and Methods
23
7. Conclusions.
24
B.
Authority to Engage in Covert Operations.
1. Constitutional Authority of the President to
Authorize Covert Operations.
26
2. Statutory Authority of the President to Engage
the CIA in Covert Operations.
a. National Security Act of 1947.
29
b. Foreign Assistance Act of 1974.
34
3. Conclusion
36
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C. Limitation on the Authority to Reorganize the
Civilian Intelligence Community.
1. Reconstituting the Duties of the Director of
Central Intelligence.
a. Existing statutory responsibilities. 37
b. Adding additionalduties. 38
c. The dual role conception. 43
d. Appointing a separate intelligence advisor
to the White House. 44
2. Altering the Responsibilities of the National
Security Council. 44
3. Appointing of Advisory Committees. 46
4. Conclusions. 48
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CONSTITUTIONAL AND STATUTORY AUTHORITY
TO CONDUCT
FOREIGN INTELLIGENCE ACTIVITIES
I. INTRODUCTION.
This research study was made at the request of the IC
Coordinating Staff and based on a recommendation by the General
Counsel. It is divided into three parts:
A- Authority for Activities Related to the Collection
of Foreign Intelligence.
B- Authority to Engage in Covert Operations.
C- Limitations on the Authority to Reorganize the Civilian
Intelligence Community.
Each of these subjects is treated separately. Neither the
text nor the references include classified information.
The conclusions reached were based on present knowledge of
intelligence operations. It is conceivable that some of the conclusions
may have overlooked some aspects of the practical functioning of
intelligence operations and, therefore, may require further study.
We are confident that the case law in the field has been exhausted.
It should be noted, nevertheless, that there are very few cases
dealing precisely with the issues discussed in this paper. However,
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the cases played an important part in arriving at the conclusions,
and our supporting views are based, in large part, on the rationale
of some of the leading decisions, particularly those which involve
Presidential powers.
It can be expected also that the issues discussed in this paper
will suggest others on which research may be desired. Other topics
which may be considered as additional research projects are the
following:
1. Jurisdictional problems in conducting domestic
intelligence activities;
2. Scope of authority to protect sources and methods;
3. Fourth Amendment problems in connection with domestic
intelligence activities;
4. Limits on CIA authority to conduct investigations and
other similar activities within the United States;
5. Limitations on covert operations under international
law;
6. Authority of CIA to assist other Federal agencies in
carrying out their responsibilities;
7. Nature and scope of the confidentiality of CIA records;
8. Legal responsibilties of CIA and its employees for
lawful conduct within the U.S..
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II. ANALYSIS OF SOME OF THE ISSUES.
1. The Nature of Presidential Powers.
The nature and scope of Presidential powers relating
to foreign affairs are difficult to determine. The few references
to such powers in the Constitution offer little guidance and
court decisions are not too helpful, tending to keep within the
narrow limits of the issues.
The clauses in Article II of the Constitution do not
articulate the powers of the President in conducting foreign affairs,
formulating and implementing foreign policy, and taking the steps
necessary to safeguard national security. Some authorities contend
that the Constitution contemplated that the President should possess
the sovereign power which the founding fathers intended to vest in
the Federal Government as a whole. Whatever sovereign power that
exists in the national government for conducting foreign affairs
is distributed among the three branches, and the theory that the
President has unrestricted sovereign power to act exclusively and
independently in foreign affairs cannot be supported. 1/
The problem of ascertaining the true nature of the President's
powers is made particularly complex because the Constitution has
divided responsibility for foreign affairs between the President
i. See e.g. "Foreign Policy and the Constitution", 61 Va. Law. Rev.
751, 753 (1975).
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and Congress. The President negotiates a treaty; the Congress
ratifies it. The Congress declares war; but the President prosecutes
it. Since there is no explicit allocation of authority between the
two branches of government, it remains uncertain as to which branch
has authority to determine U.S. foreign policy and under what
circumstances both branches must share in its formulation.
Traditionally, Congress makes the laws and the President
executes them. If our Constitution required a strictly functional
separation of powers, Congress would have the responsibility of
making foreign policy and the President of enforcing it. But this
concept has been rejected by history, and we have followed the
general tradition of recognizing the authority of the President to
"legislate" foreign policy and Congress to legislate in domestic
affairs. On the few occasions the Supreme Court has reviewed the
scope of the President's powers in foreign affairs, it has tended to
avoid any ruling that offers much assistance in ascertaining the
limits of the scope of such powers. In the Curtiss-Wright case 2
the court seemed to endorse the proposition that the President had
inherent authority to legislate foreign policy. However, in
Youngstown 3/, the court seemed to favor a "natural" division
of powers between Congress and the President, allocating those
2. United States v. Curtiss-Wright, 299 U.S. 304 (1937)
3. Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952)
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which are inherently "executive" to Congress. Whether the rule
in Youngstown will be applied broadly to foreign affairs, or
restricted to the domestic aspects of foreign policy, has not yet
been decided.
Acceptance of the view that Congress and the President
share authority in the field of foreign affairs belies any conclu-
sion that the President possesses unrestricted inherent power.
Moreover, to adopt the principle of the exclusive primacy of
Presidential powers in foreign affairs is to ignore the doctrine
of separation of powers. Therefore, an analysis of Presidential
authority in that area must take into account the statutory frame-
work which Congress established under its power to legislate. 4/
2. Presidential Power and Intelligence Activities.
The power of the President to collect foreign intelligence
affecting our national security need not rest exclusively on a
Congressional delegation of authority. The existence of such
authority can be supported by the President's authority as Commander-
in-Chief to acquire intelligence for use in making military decisions
necessary for protecting our national security. 5/ This is
reinforced by Congressional policy as articulated in the NSA.
There is support for the view that the responsibilities of the
4. Unlike Article II which states that: "The Executive Power shall
be vested in a President...", Article I states that "All legislative
powers herein granted shall be vested in a Congress..." (underscoring
added).
5. Totten v. United States, 105 U.S. 106 (1875)
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President for conducting foreign affairs vests an inherent authority
in him to collect intelligence necessary to intelligently carry out
his responsibility. This is based on the proposition that the
manifestly complex nature of foreign policy decisions requires that
the President obtain information to aid him in formulating foreign
and domestic policy. In discussing Presidential authority as related
to executive privilege, the Supreme Court in United States v.
Nixon 6/ stated that "certain powers and privileges flow from the
nature of the enumerated powers." Therefore, the authority of the
President to collect foreign intelligence without legislative
authority either can be implied from an enumerated power or it can
be based on the power of the President to conduct foreign affairs
and to formulate foreign policy. It may be concluded, therefore,
that the mere collection of intelligence to assist in formulating
foreign policy needs no supporting legislation. 7/
3. Authority to Conduct Covert Operations.
There has never been any doubt as to the President's power to
use whatever means, covert or otherwise, to meet the threats of war
or national emergency. The authority is inherent under his power as
Commander-in-Chief. When the President is not acting under his
authority as Commander-in-Chief during times of war or national
emergency, his authority to conduct covert operations involving
6. 418 U.S. 683, 705 (1974)
7. This is not to imply that if Congress legislates with respect
to the collection of intelligence, the President can still act
independently of the legislation.
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political or military force directed at foreign governments and their
leaders must be based on what is appropriately described as his
"residual" power. This power includes the authority to conduct
foreign affairs and the primary responsibility for safeguarding our
national security from foreign threats. However, because it does not
fall within one of the President's enumerated powers giving him an
independent source of power, the authority to conduct foreign affairs
and to safeguard the national security must be shared by him with
Congress.
The right of a nation to act in order to protect its
national security is based upon the rule of international law which
recognizes the sovereign right of self preservation. But under
our system of government, authority to take action to safeguard our
national security does not rest in the President alone.
Until the enactment of the Foreign Assistance Act of 1974,
there was serious doubt that the CIA had authority to engage in covert
operations involving the use of political and military force against,
or in support of, a foreign government or its leaders. Such operations
involve the implementation of foreign policy -- a power which would
be difficult to support as having been delegated to the CIA, the
NSC, or the President by the National Security Act. Most of the
duties delegated to the CIA under that Act are ministerial and do not
involve policy making or policy implementation in the field of
foreign affairs.
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Using covert operations to implement foreign policy within
the context discussed herein, independent of any Congressional
grant, affectsthe equilibrium sought by the framers of the
Constitution in providing for the
If this authority were recognized
Executive Branch, it would permit
separation of governmental powers.
as independently existing in the
the President to
secretly
"legislate" foreign policy and then secretly execute it, using covert
means in so doing.
It has been suggested that the special authority given to
the National Security Council in section 102(d)(5) of the Act 8/
to authorize "other functions and duties" provides the necessary
authority for CIA to conduct foreign covert operations. Any such
interpretation would strain the literal meaning of the language used.
The "other functions and duties" which the NSC may assign are limited
to those "relating to intelligence affecting the national security".
It would be difficult to support the view that the implementation of
foreign policy by the covert use of political, economic, or military
force is related to the collection, evaluation or dissemination of
intelligence.
Any question as to whether the President can authorize covert
operations has now been removed by the enactment of the Foreign
Assistance Act of 1974. 9/ Section 662 of that Act limits the
authority of the President to use appropriated funds for conducting
g. 50 U.S.0 402(d)(5)
9. Public Law 93-559 (1974)
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CIA covert operations in foreign countries, other than those relating
to intelligence collection, unless he makes a finding that each such
operation is important to national security and reports such finding
to Congress.
There are two ways to view this section. One view is to
construe it as making an affirmative grant of power to engage in
foreign covert activities. Another view is to construe it as placing
a limitation on authority that is presumed to already exist in the
President, the CIA or the NSC.
4. Covert Operations and International Law.
This paper has not dealt with the scope of the authority of
a nation to pursue foreign policy objectives by the use of covert
operations. It also does not touch on the issue of whether some of
the reported instances of the use of covert operations violate
treaties or resolutions of the United Nations. However, we have
expressed the view that international law should not be the basis
for determining the legality of foreign covert operations to the
exclusion of statutory and Constitutional considerations which are
part of our domestic law. This view would seem to apply also to
foreign intelligence collection activities.
5. Reorganization of the Civilian Intelligence Community.
It is apparent from our study of the legal problems in
reorganizing the civilian intelligence community that many of the
adminiatrative obstacles to improving the efficiency_of the national
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intelligence operation cannot be overcome without Congressional
action. Any attempt by the President to vest in a new appointee
authority that has already been delegated to a specific person or body
under the National Security Act or any effort to reallocate duties
already assigned by statute would be contrary to the Act and also
may constitute an executive reorganization requiring legislation. 10/
10. Reorganization under the procedure of the Executive Reorganization
Alt ended on April 1, 1973. 5 U.S.C. 901, 905.
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III. SUMMARY OF CONCLUSIONS.
A. Authority for Activities Relating to the Collection of
Foreign Intelligence.
1. The authority of the President to collect intelli-
gence in times of war and national emergency is implied from his
Commander-in-Chief power, supplemented by his authority to faith-
fully execute the laws. This authority needs no independent
Congressional grant to support it.
2. The President also would appear to have authority to
collect intelligence, independent of a Congressional grant, when
necessary or appropriate in carrying out any of his other enumerated
powers or powers which are implied from the nature of his responsi-
bilities, such as the conduct of foreign affairs.
3. Nowithstanding the existence of independent authority
in the President to conduct intelligence activities, Congress has
concurrent jurisdiction to legislate in the broad field of foreign
affairs and, therefore, when it does legislate, the President is
subject to such legislation. Any objection by the President would
have to be based on the claim that concurrent jurisdiction does not
exist and the legislation encroaches upon Presidential powers in
violation of separation of powers.
4. Under the National Security Act and amendments thereto,
the CIA, DCI, NSC and the President are limited by the provisions
of that Act in the conduct of intelligence activities and any
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actions which are inconsistent with the Act would be invalid and
violate the separation of powers.
5. The DCI has plenary authority to protect intelligence
sources and methods. This authority may be exercised in a quasi-
legislative manner, but it may not be exercised in a manner which
would violate the prohibitions against the use of law enforcement
powers or involvement in internal security functions.
6. To the extent that foreign covert activities are used
solely in connection with the collection of intelligence or the
protection of sources and methods, such activities appear to come
within the authority of the NSA.
B. Authority Relating to Covert Operations.
1. The President has inherent authority under t12Constitution,
independent of any grant of legislative authority, to authorize covert
activities involving the use of political, economic, or military force
against a foreign government or its leaders --
(a) In times of war or national emergency under his
powers as Commander-in-Chief and his responsibilities for executing
the laws; and
(b) To a limited extent, in times of peace under his
residual authority as chief executive to take appropriate action when
confronted with foreign threat to the security of the United States.
2. Although there are differences of opinion, it is doubtful
that CIA was intended to have authority under the NSA to implement
foreign policy by the use of covert means targeted against foreign
elements.
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3. The use of the CIA by the President or the NSC for
conducting covert activities unrelated to the collection of intelli-
gence and prior to the enactment of the Foreign Assistance Act of
1974 is not supported by the provisions of the National Security Act
or its legislative history.
4. In the enactment of the Foreign Assistance Act of 1974,
Congress expressly recognized, and, by implication acquiesced in, the
authority of the President to authorize covert operations subject
to a finding that the operation is important to the national
security and a report of such finding is submitted to the Congress.
5. The theory that the President has unrestricted sovereign
rower to authorize covert operations as long as they do not violate
international law cannot be supported.
C. Limitation3on the Reorganization of the Civilian Intelligence
Community.
1. The President can add to or change those duties of the
Director of Central Intelligence (DCI) which would not amend the
National Security Act (NSA) and which are within the range of duties
that can be implied from 50 U.S.C. 403(d). Such changes may be
initiated by the National Security Council (NSC) or the President
through the Council.
2. The appointment of a senior intelligence advisor,
coordinator, or other assistant to aid the President is a valid
exercise of Presidential authority provided that the-duties and
functions assigned to such appointee do not conflict with those
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expressly assigned by the NSA to the NSC or the CIA.
3. The President can direct the NSC to perform additional
functions and duties provided that they do not conflict with the
advisory role of the Council and are otherwise consistent with the
provisions of the NSA.
4. The President should work through the NSC in directing
the creation of additional advisory committees to aid the work of
the CIA and the NSC. The President's own advisory committees can
perform advisory activities which parallel the work of the NSC but
such committees cannot usurp the management and supervisory functions
the NSA directs the Council to perform.
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IV. DETAILED ANALYSIS OF ISSUES.
A. Authority for Activities Related to the Collection of
Foreign Intelligence.
1. Presidential Powers Generally.
"Presidential powers are not fixed but fluctuate, depending
upon their disjunction or conjunction with those of Congress." 1/
This statement, made by Mr. Justice Jackson in his concurring
opinion in the Youngstown case, describes the fundamental nature
of Presidential powers and points to the problem in attempting to
draw precise lines between Presidential and Congressional powers.
In this case he described the powers of the President as falling
into three broad categories.:
"1. When the President acts pursuant to an express
or implied authorization of Congress, his authority is
at its maximum, for it includes all that he possesses
in his own right plus all that Congress can delegate.
In these circumstances and in these only, may he be
said ... to personify the federal sovereignty.
"2. When the President acts in absence of either
a congressional grant or denial of authority, he can
only rely upon his own independent powers, but there is
a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is
uncertain. Therefore, congressional inertia, indif-
ference or quiescence may sometimes, at least as a
practical matter, enable, if not invite, measures
on independent presidential responsibility. In this
area, any actual test of power is likely to depend
on the imperatives of events and contemporary imponder-
ables rather than on abstract theories of law.
1. 343 U.S. 579, 635 (1952)
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"3. When the President takes measures incompatible
with the expressed or implied will of Congress, his
power is at its lowest ebb, for then he can rely only
upon his own constitutional powers minus any constitu-
tional powers of Congress over the matter. Courts can
sustain exclusive presidential control in such a case
only by disabling the Congress from acting upon the
subject. Presidential claim to a power at once so con-
clusive and preclusive must be scrutinized with caution,
for what is at stake is the equilibrium established by
our constitutional system." 2/
This analysis of the interaction of Presidential and Congressional
powers offers some guidance in determining the scope of such powers
in the field of foreign intelligence within the framework of the
National Security Act.
2. Authority to Collect Foreign Intelligence.
The President's authority to collect intelligence during war
is unquestioned. The authority is implied in the power of the
President as Commander-in-Chief of the armed forces. Totten v.
United States, 92 U.S. 105, 106 (1875). Because of the need for
accurate and reliable intelligence to enable the President to carry
out his responsibilities for anticipating outside threats to our
national security and conducting foreign affairs on a day to day
basis, the collection of intelligence under conditions other than
war or national emergency also seems clearly justified. These
powers aid the President in the conduct of foreign affairs and
in the preparations to meet potential threats to our national security.
In commenting upon the President's authority as Commander-in-Chief
2. Id. at 635-38
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and in conducting foreign affairs, the United States Court of
Appeals for the Third Circuit, in United States v. Butenko, 3/
pointed to the importance of the President having information to
assist him in making an informed judgement in carrying out his
responsibilities. "Decisions affecting the United States' rela-
tionship with other sovereign states are more likely to advance our
national interests if the President is apprised of the intentions,
capabilities and possible responses of other countries:' In
United States v. Nixon, 4/ the Supreme Court recognized this broad
concept of executive power in commenting on the Presidential power
of executive privilege. The Court stated that "certain powers and
privileges flow from the nature of enumerated powers" and as such
have "constitutional underpinnings." 5/
Although the President has inherent authority to collect foreign
intelligence, this authority is not exclusive. There is no doubt that
Congress has the authority to legislate the administrative and
organizational framework for the conduct of intelligence activities. 6/
To provide this framework, Congress enacted the National Security
Act of 1947 establishing the National Security Council and the
CIA. To the extent the National Security Act has legislated with
3. 494 F. 2d 593 (3rd Cir. 1974)
4. 418 U.S. 683 (1974)
5. Id. at 705-06
6. Congress has the power under the "necessary and proper" clause to
limit Presidential authority in foreign affairs. U.S. Constitution
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respect to intelligence activities, the President is limited.
However, he is not limited by functions or activities not embraced
by the Act and which can be. supported under his independent authority
as President under Article II of the Constitution.
3. Authority Under the National Security Act.
Under the National Security Act, the CIA is authorized to
correlate, evaluate and disseminate intelligence information derived
from other intelligence agencies of the Government. 7/ In the
performance of this function, the Agency is authorized to require
the submission by other agencies and departments of information
affecting national security. 8/ The CIA is also autforized to perform
services of common concern for the benefit of other intelligence
agencies, 9/ and other intelligence functions and duties affecting
national security as the National Security Council may direct. 10/
In addition, the Director of Central Intelligence, under the direction
of the National Security Council is given the responsibility for the
protection of intelligence sources and methods. 11/ To delineate
the responsibilities of the CIA in the foreign intelligence field
v. Mitchell, No. 73 - 1847 (D.C. Cir.
Art. I, ? 8; cf.
June 23, 1975)
Zweibon
slip op.
at 825, 880 n. 228.
7.
50 U.S.C.
403(d)(3)
(1964)
8.
50 U.S.C.
403(e) (1964)
9.
50 U.S.C.
403(d)(4)
(1964)
10-.
50 U.S.C.
403(d)(5)
(1964)
11.
50 U.S.C.
403(d)(3)
(1964)
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and the FBI in the domestic field, the Act contains a specific
prohibition against the utilization of police, subpoena, and law
enforcement powers, or the performance of internal security
functions. 12/
Conspicuous by its absence is the "collection" function. This
function is not readily implied from correlation, evaluation, or
dissemination, but it is clear that Congress intended the "collection"
function to be included in the Act. 13/ The legislative history is
also clear that the CIA was limited to foreign intelligence activities
with the possible exception of such activities relating to its house-
keeping responsibilities and the protection of its sources and
methods.
The legislative history of the NSA disclosed the concern of
several witnesses for the need of a central collection operation for
foreign intelligence. In addition the language of the Act concerning
12. Id.
13. See Hearings on S. 758 Before the Armed Services Committee,
80th Cong., 1st. Sess. at 491-501, 469; H.R. Rep. No. 2734,
79th Cong., 2nd Sess. (1946) (Includes recommendation that collec-
tion authority be withheld, but prohibition dropped in later drafts);
S.B.L. Penrose, Jr., Collection of Background Papers on Development
of CIA (15 May 1947); Report, Commission on CIA Activities Within
the United States (hereinafter, Rockefeller Commission Report) at 59.
The authority for collection would probably fall under the "functions
and duties" section, 403(d)(5), see Note 16 infra., although ? 403(d)(4)
providing authority for performance of "services of common concern"
could also be used. Walden, "The CIA: A Study in the Arrogation of
Administrative Powers", 39 Geo. Wash. L. Rev., 66, 69 (1970) .
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"additional functions and duties" 14/ was taken directly from the
Presidential order establishing the Central Intelligence Group (CIG).
A key witness testified that he interpreted the language of the
order to include collection activities. 15/ Fdr Congress to use
the same langauge in the act as used in the order indicates strongly
that the CIA was intended to have authority to collect intelligence. 16/
The practice of CIA performing collection activities since its
inception leaves little doubt that the collection function is
within the CIA's authority. 17/
4. Restrictions on Executive Authority.
Although delegation of authority for the President's use of the
CIA is broad, there are certain provisions contained in the NSA
which limit the Executive Branch in conducting intelligence activities.
The provision prohibiting he use of the CIA for internal security
or police functions, along with the legislative history of
14. "(It) shall be the duty of the Agency ...(5) to perform such
other functions and duties related to intelligence affecting the
national security as the National Security Council may from time to
time direct." 50 U.S.C. ? 403(d)(5) 1964).
15. Hearings on S. 758 before the Armed Services Committee, 80th
Cong., 1st Sess. at 491-501.
16. In an early version of the functions and duties of the proposed
agency, an express prohibition was included forbidding collection
activities. H.R. Rep. 2734, 79th Cong., 2nd Sess. (1946). In the
final draft, however, that prohibition was excluded with the remaining
language unchanged. 50 U.S.C. 403(d)(5) (1964)
17. The administrative practice of including collection within the
Agency's authority provides strong support for the ipterpretation
that that function falls under ? 403(d)(5), especially if Congress,
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the Act, make it clear that the Agency is limited in its conduct of
intelligence activities within the United States, except possibly
those of an overt nature relating to foreign intelligence 18/ or
those which may be justified in order to protect intelligence
sources and methods. 19/
In conducting intelligence activities, the Executive Branch also
must keep within Constitutional limitations and any treaty limitations
that may be applicable. 20/ The President has no inherent power to
authorize intelligence collection functions in violation of
Constitutional provisions. The extent of the latter restriction is
unclear. Court decisions concerning Fourth Amendment requirements
have dealt only with domestic aspects of national security and have
left unanswered the question of the applicability of the Fourth
Amendment to the foreign aspects of national security, i.e.,
with knowiedge of such an interpretation, acquiesces in it. United
States v. Midwest Oil Co., 236 U.S. 459 (1915); see Saxbe v. Bustos
419 U.S. 65 (1974)
18. Rockefeller Commission Report at 48.
19. See Note 26, infra.
20. This discussion is not intended to judge the impact of a specific
international obligation of the United States on the authority of the
Executive to conduct intelligence activities. The vast number of
treaties and other agreements to which the United States is party
would make such an undertaking extremely time consuming and voluminous.
It should be noted that treaties of which the United States is a party
are the law of the land and, of course, any actions of the President
must not be inconsistent with them. Youngstown Sheet and Tube Co. v.
Sawyer, 343 U.S. 579 (1952). For a good discussion of espionage under
international law, both in war and in peace, see Note, "Espionage in
Transnational Law", 5 Vand. J. Trans. L. 434 (1972)
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surveillance of agents or organizations operating in the U.S. but
serving the interests of a foreign nation. 21/
Since Congress has acted in the foreign intelligence
field, the President is limited in his use of CIA to the specific
functions allocated to the Agency by the NSA. If Congress had
intended to authorize the President to use CIA to carry out foreign
policy generally, it could have so provided. There was, in the
development of the Act, a concern over the President's apparent
authority to assign functions to the Agency. This concern led
to the specific assignment of CIA's functions in the statute. 22/
It would appear, therefore, that the President can only direct CIA
in its assigned functions -- correlation, evaluation, dissemination,
and collection 23/ -- and is not permitted to direct the performance
of functions unrelated to foreign intelligence or not otherwise
within the statutory grant.
5. DCI Authority.
The Act confers on the Director of Central Intelligence special
authority in relation to the other elements within the intelligence
community. It states, in effect, that to the extent recommended by
the NSC and approved by the President, the intelligence collected by
21. United States v. United States District Court, 407 U.S. 297
(1972); compare Zweibon v. Mitchell, No. 73-1847 (D.C. Cir. June 23,
1975), with United States v. Butenko, 494 F. 2d 593 (1974)
22. Hearings on S. 758 before Senate Committee on Armed Services, 80th
Cong., 1st Sess. at pp 78, 87-89, 96-99 (1940; H.R._Rep. 961, 80th
Cong., 1st Sess. pp. 3-4 (1947).
23. See text at Notes 13-17, supra.
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other agencies and departments shall be made available to the DCI
for correlation, evaluation and dissemination. 24/ This seems
to provide the President with ample authority to require all agencies
and departments which collect intelligence affecting national security
to report such intelligence to the DCI for the purposes of correlation,
evaluation and dissemination.
6. Protection of Sources and Methods.
The Act contains another provision relating to intelligence
that should be touched upon. This provision places upon the DCI the
responsibility "for protecting intelligence sources and methods from
unauthorized disclosure." 25/ This authority is plenary and gives
the DCI authority to establish the standards and rules for protecting
such sources and methods for all agencies and departments collecting
intelligence affecting national security. There is no indication
as to the extent which the DCI might go in carrying out this responsi-
bility or as to the methods which may be put to use. Also, in view
of the prohibitions against the use of police or law enforcement powers
and involvement in internal security functions, it could appear
that the DCI's authority for protecting intelligence sources
and methods is limited to rule making in nature rather than investi-
gatory or prosecutory, particularly in exercising authority
domestically. 26/
24. 50 U.S.C. B 402(e) (1964)
25. 50 U.S.C. g 402 (d)(3) 1964)
26. See generally Rockefeller Commission Report at 60-61, 165-70
(1975); Association of the Bar of the City of New York, The Central
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7. Conclusions.
a. The authority of the President to collect intelligence in
times of war and national emergency is implied from his Commander-
in-Chief power, supplemented by his authority to conduct foreign
affairs. This authority needs no independent Congressional grant
to support it.
b. The President also would appear to have authority to collect
intelligence, independent of a Congressional grant, when necessary
or appropriate in carryirg out any of his other enumerated powers or
powers which are implied from the nature of his responsibilities such
as the conduct of foreign affairs and faithfully executing the laws.
c. Notwithstanding the existence of independent authority in
the President to conduct intelligence activities, Congress has
concurrent jurisdiction to legislate in the broad field of foreign
affairs and, therefore, when it,does legislate, the President is
subject to such legislation. Any objection by the President would
Intelligence Agency: Oversight and Accountability, at 10, 11, 34
(1975); Heine V. Raus, 399 F. 2d 785 (4th Cir. 1968), on remand
305 F. Supp. 816 (D.C. Md.) aff'd, 482 F. 2d 1007 (4th Cir. 1969).
The language of the Act granting protection of sources and methods
responsibility to the DCI is so general as to be subject to sub-
stantial variation in interpretation. It would seem reasonable,
however, that the general restrictions on the Agency would also apply,
at least in spirit, to the DCI, thus delegating him an extensive
responsibility abroad in relation to protection of sources and methods,
while substantially limiting the delegation as to his responsibility
in that area domestically.
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have to be based on the claim that concurrent jurisdiction does
not exist and the legislation encroaches upon Presidential powers
in violation of separation of powers.
d. Under the National Security Act, the CIA, NSC and the
President are limited by the provisions of that Act, and any amend-
ments thereto, in the conduct of intelligence activities and any
actions which violate the Act would be invalid and violate the
separation of powers.
e. The DCI has plenary authority to protect intelligence S'ources
and methods. This authority may be exercised in a quasi-legislative
manner, but it may not be exercised in a manner which would violate
the prohibitions against the use of law enforcement power or involve-
ment in internal security functions.
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B. Authority to Engage in.Covert Operations.
Introduction.
The President's authority to order covert operations* must
arise from his enumerated Constitutional powers or a statutory
delegation by Congress. If acting under a grant from the
Constitution, the President must draw upon his inherent powers or
those implied from his express powers. If acting pursuant to legisla-
tive enactment, two statutes possibly provide the requisite
authority: the National Security Act of 1947 1/ and the Foreign
Assistance Act of 1974. 2/ This analysis will determine whether
Presidential power exists to authorize covert operations and, if
so, whether the CIA is empowered to engage in them. Unless so
empowered, any Executive Order would be without authority and
? appropriate legislation would be necessary.
1. Constitutional Authority of the President to Authorize Covert
Operations.
The determination of Presidential authority to formulate a peace-
time policy of foreign covert operations requires an analysis of
the powers granted in Article II. Specifically, this authority
*For the purposes of this memorandum, covert operations embraces
only those activities unrelated to collection of intelligence
which are conducted on foreign soil against foreign nationals.
50 U.S.C. 402
2. Public Law 93-559, g 32 (1974)
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may arguably be implied from each of the following express powers. 3/
a. Responsibility to see that the laws are faithfully
executed;
b. Commander-in-Chief power to command the armed forces;
and
c. Grant of general executive power.
To claim authority under the first, the President must act
pursuant to statute or treaty. There are only two statutes which
could be interpreted as conferring such authority: the National
Security Act of 1947 and the Foreign Assistance Act of 1974 (see
discussion on page 34 infra.).
The President may order covert operations under his Commander-in-
Chief authority in time of war. 4/ However, in times of international
tranquility, the President may be restricted to the collection of
intelligence. Authority for covert operations would then arise from
the need of the President, as Commander-in-Chief, to make informed deci-
sions on deployment of forces to protect the national security. 5/
3. Art. II, U.S. Constitution. This memorandum does not address
any issues relating to international law. An analysis of covert
operations and outstanding international agreements will be
provided upon request.
4. Cf. Totten v. United States, 92 U.S. 106 (1875) and United States
v. Curtiss-Wright, 299 U.S. 301 (1937) for the proposition that
authority to order covert operations against the enemy in time of war
is implied from the Presidential powers as Commander-in-Chief.
5. Ibid. See also Federalist No. 23 (Hamilton) and Federalist No. 48
(Madison), and Federalist No. 69 (Hamilton) for endorsement of strong
Executive power in the area of foreign policy. Rostow, E., "Great
Gases Make Bad Law: The War Powers Act", 50 Tex. L. 'Rev. 833, 864
(1972), Notes, "Congress, the President and the Power to Commit
Forces to Combat", 81 Harv. L. Rev. 1771, 1777 (1968).
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The last possible source of Presidential authority is the
inherent or general "executive power". 6/ It could be interpreted
to allow covert operations in peacetime as a means of implementing
foreign policy. This executive power can be interpreted broadly
to grant discretionary authority to the President to engage in covert
operations limited only by Congress' power to declare war. 7/ A
second interpretation would allow the President to engage in such
operations, but subject to statutory restriction as well as Congress'
enumerated powers. 8/ The third and most reasonable interpretation
of executive power would make the President's actions subject to
6. General executive power was recognized as a distinct enumerated
power of the President under Art. II by the Supreme Court in
United States v. Nixon 418 U.S. 683 (1974). See also Notes,
"Congress, the President, and the Power to Commit Forces to Combat".
81 Marv. L. Rev. 1771, 1776 (1968.
? 7. An overly broad interpretation of United States v. Curtiss-
Wright 299 U.S. 304 (1937), would grant the President, as holder of
the general executive power, residual authority to go beyond his
enumerated powers to take whatever measures he deems necessary to
implement foreign policy. The Presidential power would be exclusive
and plenary in foreign affairs; subject only to the Bill or Rights
and Congress' enumerated powers (i.e., power to declare war). Under
this broad view, the President would have almost total discretion to
use covertoperations as an instrument of foreign policy regardless
of existing statutes. See also Barry Goldwater, "The President's
ConstitutionalPrimacy in Foreign Relations and National Defense",
13 The Virginia Journal of International Law, 463, 475 (1975).
8. Art. I ? 8, Necepsary and Proper Clause; McCulloch v. Maryland,
4 Wheat. 316, 4 L. Ed 579 (1819). President must adhere to an
expression of Congressional policy in an area of share responsibility.
Youngstown v. Sawyer, 343 U.S. 579 at p.635-38(1953)(Jackson Opinion).
See also Note, "Presidential Power: Use and Enforcement of Executive
-Orders", 39 Notre Dame Lawyer 44, 49 (Dec. 1963); Reveley: "Presiden-
tial War Making: Constitution Prerogative or Usurpation?",
55 U. Va. L. Rev. 1243 (1969). Federalist No. 47 (Hamilton) pp.
312-15 (Mod. Library ed.). There are limits to the extent of
statutory control (see N. 9 below).
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statutory restriction except under those circumstances when he must
conduct covert operations to eliminate a threat to the national
security. 9/ As such, the range of permissible Presidential
actions is necessarily circumscribed by the nature of the threat to
the national security.
The President may, therefore, establish policy guidelines for
covert operations for he does possess the requisite independent
authority. However, this does not mean that the President can
establish a policy of CIA-administered covert operations for that is
a question of statutory rather than Constitutional interpretation.
2. Statutory Authority of the President to Engage the CIA in
Covert Operations.
a. National Security Act of 1947.
Whether there exists authority for CIA covert activities involves
analysis of both the authority vested in the National Security Council
9. The President's power to eliminate the threats to the national
security is not properly subject to statutory restriction because it
is implied from his exclusive power as Commander-in-Chief as well
as an integral aspect of his more general executive power. See generally
Wiener v. United States, 357 U.S. 349 (1958); Myers v. United States,
272 U.S. 52 (1926); Muskrat v. United States, 219 U.S. 346 (1911);
Federalist No. 48 at pp. 321-23 (Mod. Library ed.). The scope of
Presidential discretion is governed by what is practically necessary
under the particular circumstance. See Federalist No. 72 at pp. 468-
69 (Mod. Lib. ed. 1937). Rostow, "Great Cases Make Bad Laws: The
War Powers Act", 50 Tex. L. Rev. 833, 864 (1972); Notes, "Congress
the President and the Power to Commit Forces to Combat", 81 Harv. L.
Rev. 1771, 1785 (1968); Reveley, "Presidential War Making: Consti-
tutional Prerogative or Usurpation", 55 U. Va. L. Rev. 1243, 1257-65
(1969); Madison, Notes of the Debates in the Federal Convention of
1787, pp. 475-76 (Ohio Univ. Press ed. 1966) - (as cited in 48 Chi.
Kent L. Rev 13, pp. 131-32) (1971). Although Presidential discretion
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(NSC) and the President under the National Security Act (NSA).
The Act describes the function of the NSC as that of making
assessments and recommendations to the President regarding matters
relating to the formulation of foreign policy. 10/ In the provisions
stating the role of the NSC, no independent operational authority
is conferred. 11/ The NSC acts primarily in an advisory capacity.
Whatever independent operational authority exists must be implied
from those sections concerned with the functions and duties of the
CIA. 12/ As such, the NSC is limited under the Act to instructing
the CIA in the performance of those ministerial tasks necessary for
the production of more accurate foreign policy assessments and
recommendations. Covert operations do not appear to fall within this
class and, therefore, may not be authorized by the NSC without
Presidential approval.
Under the NSA the President may utilize the NSC as an
instrument of his Consititutional powers. 13/ The NSA did not
purport to delegate to the President any additional authority in
when dealing with threats to the national security is broad, he may
not act under a colorable assertion thereof. Cf. United States v.
Nixon, 418 U.S. 683 (1914). Nor can he take actions
which amount to a usurpation of Congress' power to declare war.
See gen. War Powers Act of 1973, Hse. Rep. 93-287 on H.J. Res.
542,
Committee on Foreign Affairs, 93rd Cong. 1st Sess. (1973)
10.
50 U.S.C.
?
402(a),
402(b)(1)(2)
11.
50 U.S.C.
?
401, 402
12.
50 U.S.C.
?
403(d);
403(d) (5)
13.
50 U.S.C.
?
402(6)
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the area of foreign policy. 14/ Rather, the Act recognized and
preserved existing independent Executive authority, 15/ and
established a statutory framework for its implementation to which
the President must adhere. 16/
Assuming arguendo that the President does possess the con-
stitutional authority to conduct covert operations, he may
14. 50 U.S.C. ? 402(d), 402(b). Note that NSC is an advisory body.
Moreover, 50 U.S.C. 403(d) incorporated the CIA functions and duties
as stated in the Presidenital Directive of Jan. 22, 1946, 3 CFR 1080
(1943-48 Comp.)
15. Art. II, U.S. Constitution. Particularly the general executive
power and Commander-in-Chief clauses.
16. Congress may prescribe the ne4essary and proper means for
the execution of Presidential powers. Congressional action is uncon-
stitutional only where it limits Presidential power rather than
merely providing a means for its execution. (See Notes 8 and 9).
See also Zweibon v. Mitchell No. 73-1847 at p. 880, Note 228 p.
228 (1975). For the proposition that under the NSA the CIAwas to
be limited to specific functions and duties see: (1) Memorandum
for the Record by Lt. Gen. H. Vandenberg, Proposed Legislation for
CIG, Chief Legislative Liaison Division. (2) Hse. Rep 2734,
79th Cong. 2nd Sess (1946). (3) Sen Rep. 1327, 79th Cong. 2nd Sess
(1946) (4) Hse Rep. 961, 80th Cong. 1st Sess., pt. 3 (1947).
(5) Hearing on H.R. 2319 before Hse. Comm. on Expenditures in the
Executive Departments, 80th Cong. 1st Sess, p. 170 (1946) (colloquy
between Rep. Brown and Secretary Forrestal. (6) Hearing_ on H.R. 2319
before Use. Comm. on Exp. in Exec. Depts., pp. 456-58 (1946) (state-
ment of Brig. Gen. Merritt A. Edison) (7) Hearings on H.R. 2319
before Use. Comm. on Exp. in Exec. Depts., pp. 166-81 (1946)
(colloquy between Rep. Harness and Adm. Sherman) (8) Hearings on S. 758
before Senate Committee on Armed Services, p. 555 (1946) (statement
of Lt. Col. Riddell) (9) Hearings on S. 758 before Sen. Comm. on
Armed Services, 80th Cong, 1st Sess., pp. 437-39 (1946) (statement of
J.J. Bracken). For the proposition that CIA was to have maximum
flexibility in its functions and duties see: (1) Memorandum to
Gen. Magruder from Commander Donovan, General Counsel, OSS, 23 Jan.
-1946. (2) Hearingson H.R. 2319 before House Comm.dn Exp. in
Exec. Depts., p. 228 (1946) (statement of Gen. Norstad).
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? direct the NSC to establish "executive action" groups subject to
appropropriate guidelines as approved by him. However, with respect
to the utilization of Congressionally created agencies, he is
limited to the functions and duties they are assigned by statute. 17/
Consequently, the President's use of the CIA must fall within the
ambit of the applicable provisions of the NSA.
Under the NSA, the primary function of the CIA is to collate,
evaluate and disseminate foreign intelligence.18/ The motivation
for the creation of the CIA was not to provide the President
with an instrument of subliminal warfare, but to assure him access
to an organized body of information necessary for making major foreign
policy decisions. 19/
(3) Hearings on H.R. 2319 before Use. Comm. on Exp. in Exec. Depts.,
pp. 111-14, pp. 119-21 (1946) (colloquy between Rep. Busbey and
Secretary Forrestal).
17. Id.
18. 50 U.S.C. 403(d)(1) - (4) and p. 13 of text.
19. (1) Sen.'Rep. No. 239, 80th Cong., 1st Sess. p. 2,
5 June 1947. (2) Hse. Rep. 961, 80th Cong. 1st Sass, 16 June 1947, p.
310. (3) Sen. Rep. 1327, 79th Cong., 2nd Sess. (1946). (4) Thomas
Address, Congressional Record, 14 March 1947, p. 2139. (5) Hearings
on H.R. 2319 before Hse. Comm. on Exp. in Exec. Depts., pp. 166-81
(19-46) (statement of Vice Adm. F. Sherman). (6) Hearings on H.R.
2319 before Use. Comm. on Exp. in Exec. Depts, 13 May 1947, (state-
ment of Gen. Carl Spaatz). (7)hearings on S. 758 before Sen.
Comm. on Armed Services, 80th Cong. 1st Sess. (Mar 18-May 9, 1947)
(statement of Adm. Chester Nimitz). (8) Hearings on S. 758 before
Sen. Armed Services Comm, 80th Cong., 1st Sess. pp. 491-501 (1947)
(statement of Lt. Gen. H. Vandenberg). (9) Hearings on S. 758 before
Sen. Comm. on Armed Services, 80th Cong., 1st Sess., pp 548-555
.(1947) (statement of Lt. Col. Riddell). (10) Presidential
Directive, 1/22/46 (3 CFR 1080). (11) See also floor debates:
Senate: 93 Cong. Rec. pp. 8466, 8677, 9671; House: 93 Cong. Rec.,
pp. 9565, 9569, 9573, 9379, 9581, 9582, 9590, 9576. (12) See
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The only provision of the NSA that could be interpreted to allow
CIA covertoperations is ? 102(d)(5). 20/ Under this provision
the CIA may be charged with "other functions and duties relating
to intelligence affecting the national security." "Relating to
intelligence" can be interpreted to mean "relating to the collection
of intelligence." 21/ Covert activities not related to collection
(e.g., acts of economic or political subversion) are, therefore,
arguably outside the scope of ? 102(d)(5). Moreover, there are no
references to these activities in the floor debates or Committee
reports. There are only four references made to covert operations
in the entire Hearings Record. 22/
To summarize, neither the provisions nor the legislative history
of the NSA indicate that the CIA was to engage in operations not
related to the collection of intelligence. 23/ Therefore, it
also N.Y. Bar Association Study, "The CIA Oversight and Accountability",
p. 14. (13) Walden, "The CIA: A Study in the Arrogation of
Administrative Powers", 29 Geo. Wash L. Rev. 66, 84 (1972)
20. 40 U.S.C. ? 403(d)(5)
21. See (A), Note 14, supra.
22. (1) Statement of Allen Dulles, Sen. Comm. Hearings on S. 758,
p. 528 (1947). (2) Statement of Lt. Col. Ridell, Sen. Comm.
Hearings on S. 758, p. 555. (3) Colloquy between Rep. Busbey and
Secy. Forrestal, Hse. Comm. Hearings on H.R. 2319, p. 120 (1947).
(4) Colloquy between Rep. Brown and Gen. Vandenberg, Hse. Hearings on
H.R. 2319 (27 June 1947)
23. Debates: Senate - 93 Cong. Rec. pp. 8299, 8308, 8320, 8493, 8494,
9496-97, 8500-01. House - 93 Cong. Rec. pp. 9397. 9400, 9403-04.
9412-13, 9419, 9421. 9430. 9443, 9447. Reports: Hse. Rep. 961 and
Sen. Rep. 239, 80th Cong., 1st Sess. (1946). Cong. Rep. on S. 758
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seems clear that any Presidential action directing the CIA to
undertake covert activities other than those related to the collec-
tion of intelligence, cannot be based solely on the NSA.
b. Foreign Assistance Act.
Section 662 of the Foreign Assistance Act of 1974 24/ requires
the President to make a finding that any proposed CIA covert operation
not solely related to the gathering of necessary intelligence, is
"important to the national security" and then report such finding
to the Congress.
Two interpretations may be given to Section 662 concerning
the existence of Presidential authority to use the CIA for the
performance of covert operations. This provision can be construed
as either an affirmative grant of power to the President or a limitation
upon presumed Presidential authority 25/ to engage the CIA in covert
operations.
The legislative history provides support for both of these
interpretations. In the House debates, statements were made to the
effect that Section 662 was intended to permit CIA "to engage in non-
80th Cong. (Use. Rep. 1051, 80th Cong. 7/24/47 at pp. 17, 18, 19).
Hearings: On H.R. 4219 before Use. Comm. on Exp. in Exec. Depts..
On H.R. 2319 before Use. Comm. on Exp. in Exec. Depts., 80th Cong.,
1st Sess. (1947). On S. 758 before Sen. Comm. on Armed Services,
80th Cong., 1st Sess. (1947)
24. P.L. 93-559, ? 32 (1974).
25. Any pre-existing Presidential authority must be based on ? 102(d)(5)
ol the NSA (see text p.33 ). Section 662 of the Foreign Assistance Act
could be the recognition by Congress that 102(d)(5) was originally
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intelligence gathering activities 26/ and provide "a further
statutory basis for the implementation of foreign policy-related
operations of the CIA." 27/ Conversely, there were also statements
made in House debates indicating that the Section was to "limit
the instances in which foreign policy is in essence being created
by the President, the CIA, and four committees of Congress" 28/
and "to allow for closer supervision of CIA activities." 29/
However, whether Section 662 is an affirmative grant
of power to the President or limitation upon Presidential authority
to engage the CIA in covertoperation3is unimportant. The mere
presumption by the Congress of Presidential power in the field of
foreign affairs is the equivalent of an implied delegation of the
requisite statutory authority. 30/ Moreover, this interpretation
intended to allow the President to delegate his general executive
or inherent power to the CIA. In fact, the Senate version
(S. 3394) referred to acts taken pursuant to 102(d)(5) of the NSA.
See p. S 21413 Cong. Rec. (1974)
26. Cong. Rec., Dec. 11, 1974, p. H. 11651-2
27. Id. at p. 2
28. Id. at p. 2
29. Id. at p. 2
30. See United States v. Curtiss-Wright, 299 U.S. 301 at p. 302
(1937). See also Jackson opinion in Youngstown v. Sawyer, 343 U.S.
579 at p. 635 (1953) wherein he distinguishes Curtiss-Wright and also
notes that the President's powers are at their fullest when Congress
has either implicitly or expressly authorized the exercise thereof.
Cf. Notes 5, 7, 9. Note also that the standard of "important to
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of Section 662 appears consistent with the underlying intent of the
NSA in that the latter did not disturb the independent power of the
President to safeguard our national security. Consequently, the
Foreign Assistance Act provides the President with the requisite
authority to engage the CIA in. covert operations, such operations
to be authorized in accordance with the procedures of the NSA.
3. Conclusions.
a. The President has inherent authority under the Constitution,
independent of any grant of legislative authority, to authorize covert
activities involving the use of political, economic, or military force
against a foreign government or its leaders --
(1) In times of war or national emergency under his powers
as Commander-in-Chief and his responsibilities for executing the laws;
and
(2) To a limited extent, in times of peace under his
residual authority as chief executive to take appropriate action when
confronted with a foreign threat to the security of the United States.
b. Although there are differences of opinion', it is doubtful
that CIA was intended to have authority under the NSA to implement
foreign policy by the use of covert means targeted against foreign
elements.
national security" set forth by Section 662 may include actions
broader than those necessary to thwart threats to the national
security. Therefore, Section 662 may constitute a Congressional
enlargement of Presidential executive power within the broad confines
of Curtiss-Wright. It should be noted also that there is support
for the view that implied authorization for a specific operation is
not effective in an appropriations bill unless the Congress is fully
knowledgeable of the facts. Cf. Holtzman v. Schlesinger, 484 F. 2d
1307, 1316 (C.C.A. 2d 1973) involving the secret bombings of Cambodia.
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c. The use of the CIA by the President or the NSC for
conducting covert activities unrelated to the collection of intelli-
gence and prior to the enactment of the Foreign Assistance Act of 1974
is not supported by the provisions of the National Security Act or
its legislative history.
d. In the enactment of the Foreign Assistance Act of 1974,
Congress expressly recognized, and, by implication acquiesced in, the
authority of the President to authorize covert operations subject to
a finding that the operation is important to the national security and
a report of such finding is submitted to the Congress.
e. The theory that the President has unrestricted sovereign
power to authorize covert operations as long as they do not violate
international law cannot be supported.
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C. Limitations on the Authority to Reorganize the Civilian
Intelligence Community.
Introduction
With the passage of the National Security Act of 1947, Congress
asserted its legislative authority over the structuring of the civilian
intelligence commimity. The Act provided for the administrative and
. functional framework within which intelligence activities were to be
performed by the CIA, designed to replace the CIG (Central Intelligence
Group). The National Security Council was established as the new
supervisory body, replacing the NIA (National Intelligence Authority).
Any administrative changes substantially affecting the present
statutory framework for conducting intelligence activities could not be
implemented unless approved by Congress. It should be noted, however,
that because of the vagueness of certain provisions of the Act,
coupled with the broad discretionary authority vested in the President
to direct the activities of the NSC, the restrictive effect of the
statutory limitations is considerably diminished.
1. Reconstituting the Duties of the Director of Central Intelligence.
a. Existing statutory responsibilities.
The NSA has elevated the role of the DCI to that of a senior
intelligence official whose responsibilities include coordinating the
intelligence activities of all the intelligence services as well as
the management and direction of the CIA. (See CHART A at the
conclusion of this section.) The CIA occupies a status which is
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in effect superior to the other established intelligence agencies.
The function of the Agency in this context is to centralize the
intelligence information and activities so as to provide the NSC
with a comprehensive and coordinated intelligence product.
The DCI's statutory duties and responsibilities include:
(1) The coordination of the intelligence community
activities as the head of the CIA and as the NSC's senior intelligence
advisor. 50 U.S.C. 403(d) (1)-(5) (1964).
(2) Subject to the approval of the President, the right
to inspect the intelligence products of all other intelligence services
both military and civilian; the DCI must request in writing intelligence
relating only to national security from the FBI. 50 U.S.C. 403(e) (1964).
(3) The protection of intelligence "sources and methods"
for the benefit of all of the intelligence services under the direction
of the NSC. 50 U.S.C. 403(d), (g) (1964).
(4) The joint responsibility with the Attorney General
and the Commissioner of Inuaigration to determine which essential
aliens can be permitted to gain residence in the U.S. if in the
interest of national security or intelligence needs. 50 U.S.C.
403(h) (1964).
(5) The appointment of advisory committees. 50 U.S.C.
405(a) (1964).
b. Adding additional duties
Although the DCI has a broad range of coordinating functions, the
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NSA limits the use of the CIA and the DCI to the statutory duties and
responsibilities contained therein. If the President were to direct
changes in the functions of the DCI which are not authorized by statute,
he must rely on Executive powers which are the least tenable, not-
withstanding his extensive authority to conduct foreign affairs. 1/
1. Senator Goldwater's argument that the President has broad authority
to appoint and rely on whichever advisors he wishes reflects the view
that the Executive Branch retains an almost unlimited power in the area
of foreign affairs. Goldwater, "The President's Constitutional Primacy
in Foreign Relations and National Defense," 13 Va. J. I. L. 463, 475 (1973).
Goldwater's arguments are consistent with the very liberal reading of the
Curtiss-Wright case which supporters of the Executive's power interpret
to give the President an unencumbered authority in the conduct of
"external" affairs. United States v. Curtiss-Wright, 299 U.S. 304, 320
(1936). Alexander Bickel, in_contrast, views the "necessary and proper"
clause of the Constitution as the power of Congress to limit Presidential
action in foreign affairs. Bickel, "Congress, the President, and the
Power to Wage War," 48 Chi.-Kent L. Rev., 131, 140 (1971). In a note
on executive orders, the position is taken in line with Bickel's thinking
that Presidential directives are limited by the declarations of Congress
in statutes like the 1947 Act. Note, "Presidential Power: Use and
Enforcement of Executive Orders," 39 Notre Dame Law. 44, 49 (1963).
The best approach is to follow the analysis of Presidential power made
by Mr. Justice Jackson in his concurring opinion in the Youngstown case.
Using the executive powers model which Jackson establishes as the basis
for his analysis, the President, in reorganizing the intelligence
community, must rely upon powers which, when exercised, run contrary
to the will of Congress in this area of concurrent jurisdiction. Jackson
finds this particular variety of Presidential power the least defensible.
Referring to the steel mill seizure by Truman, Jackson said this type of
power is "most vulnerable to attack and in the least favorable of
possible constitutional postures." Youngstown v. Sawyer, 343 U.S. 579,
640 (1952). Justice Frankfurter, commenting on the President's duty
to faithfully execute the laws, concluded that the duty does not
transgress the laws as they exist "or require him to achieve more
than Congress sees fit to leave within his power." 343 U.S. at 610.
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Thus, it is difficult to support the President's reliance on
inherent Constitutioml authority as the basis upon which to initiate
organic changes in the structure of the office of the DCI. 2/ The
passage of the NSA represents the exercise of Congressional power in an
area of concurrent jurisdiction with the President and the Act thereby
restricts changes to those which would not circumvent the provisions
set forth in the NSA. 3/ If, for example,the President were to remove
the DCI from the supervision of the NSC, the change would be inconsistent
with the organizational framework established by Congress. 4/ This
2. The argument has been advanced that the President's exercise of
his wartime powers to create the OSS had the residual effect of vesting
within the Executive office the power to alter or reassign the duties
of the civilian intelligence community set up by the 1947 Act. The
President can initiate executive action in those areas of concurrent
authority with Congress where the Congress has failed to enact
legislation. As Mr. Justice Jackson explained in Youngstown, "In this
area any actual test of power is likely to depend on the imperatives of
events ... rather than on abstract theories of law." 343 U.S. at 637.
Thus, the nature of the Presidential initiative is often that of a
contingent response where immediate needs require that a particular void
be filled. President Truman's secret directive in January 1946
creating the Central Intelligence Group was issued only six months
prior to the committee hearings dealing with legislative proposals
which eventually resulted in the NSA of 1947. But once the Congress
enacts legislation in an area of concurrent jurisdiction, the statute
repeals those particular parts of executive directives which are
inconsistent with the new legislation. Cf. Zweibon v. Mitchell,
No. 73-1847 slip op., note 228 at 880 (D.C. Cir., June 23, 1975).
3. 50 U.S.C. 403(a), (d), (e), (1964)
4
? The legislative history of the 1947 Act shows that the under-
standing of members of Congress, during testimony in committee
hearings, was that the DCI and the Agency would work under the direction
of the NSC. [Office of Leg. Counsel -CIA] "Legislative History of
the Central Intelligence Agency" at 64 (1967) (classified SECRET).
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type of restructuring would constitute a usurpation by the President
of legislative power and would thus be subject to challenge unless
approved by Congress either as a governmental reorganization plan or
by amending legislation. 5/
Although the President's inherent power to restructure the office
of the DCI is questionable, the NSA itself provides the Executive with
a significant amount of discretion in initiating internal changes.
Under section 403(a) of the Act the office of the DCI is organized
under the NSC, and the Council, in turn, is established as an advisory
body to the President on national security matters. Strictly applied,
the statute, in effect forecloses direct Presidential control over the
DCI insofar as the administration of the provisions of the Act are
concerned. 6/ But the President indirectly controls the functions of
the DCI in his role as chairman of the NSC, provided that the directives
he initiates in the Council remain within the scope of the statute. The
scope of the statute, though, is sufficiently broad to provide the
President with a wide range of authority for utliizing the intelligence
community as an advisory body. 7/
5. The Executive Reorganization Act (50 U.S.C. 901, 905) expired on
April 1, 1973. Consequently, the President must pursue Executive
reorganization plans through the regular and more cumbersome legislative
process which the Reorganization Act bypassed if Congress did not act
upon the plan in 60 days.
6. "The Director (of CIA) reports, under the provisions of the statute,
to the members of the National Security Council in the only corporate
capacity in which the Council acts. In other words, the Council is a
statutory Board of Directors for the CIA." Anderson, "The President
and National Security", Atlantic Monthly, January, 1956, at 44.
7. 50 U.S.C. 402(a), (b) (1964).
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As a practical matter, the difference between the issuance of a
Presidental order to the DCI or requiring the NSC to initiate such a
directive should not be an organizational deterrent impeding Presidential
action. The DCI and the members of the NSC are Presidential appointees and,
therefore, there should be no obstacle to Presidential management of intelli-
gence activities, including thoseof the DCI. 8/ Apparently, this channel
of authority established under the Act is intended to reflect the legislative
view that a consensus management and control of the lower level intelli-
gence staff and agencies provides the departments represented on the
Council with a better means to secure information needed to advise both
the President and the departments.
The direct supervision of the activities of the CIA by the NSC
also provides an accountability factor which diminishes the potential
for misuse of the Agency by the President or White House level officials. 9/
Moreover, a clear, orderly administrative conduit through which
Presidential policy directives flow to the various levels of the intelli-
gence community can augment the effectiveness of both the CIA and the NSC.
8. Id., 402(a). The Act does provide for a Presidential designee
to preside over NSC meetings but the same phrase is not included in
402(b). Thus, one would be hard pressed to construe 402(b), in light
of the express power to designate someone to preside over NSC meetings,
to imply a similar right to designate someone to exercise the
President's powers to direct "other functions".
9. Recommendation (26) of -The Rockefeller Commission report emphasizes
that any high level channel between the White House and the CIA should
involve the NSC. The recommendation was the result of the need to prevent
abuses of the CIA similar to the ones apparent in the Watergate related
cases and the break-in of the home of Dr. Ellsberg's psychiatrist and
the preparation of the psychological profile on Dr. Ellsberg by Agency
doctors. "Report to the President by the Commission on CIA Activities
Within the United States': at 33 (1975).
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c. The dual role conception
As an alternative to expanding the functions of the DCI in his
present capacity, the President could appoint the DCI to an additional
White House level post reviewing the activities of the entire
intelligence community. Making the DCI the equivalent of a national
intelligence advisor to the President is similar to the status of the
present Secretary of State. There are strong political and practical
objections to this dual role conception. It would create, for example,
a possible conflict of interest in the use of political power if such
an advisor were to favor civilian intelligence over military
intelligence or vice versa. The extent of any conflict would depend
upon what authority is vested-in the advisor by the President.
Less conflict would probably develop if the authority was limited
to executive oversight. But if the advisor were assigned management
responsibilities over the intelligence community, the conflict could
become irreconcilable. 10/ In contrast with the DCI, the Secretary
of State's direct responsibility to the President in either position
he occupies, his advisory capacity, and the absence of an intermediate
10. Earlier internal studies examined various options for the
reorganization of the office of DCI. The primary objection raised
in opposition to the appointment of what is in effect an intelligence
"czar" was the control of the military intelligence apparatus. This
recurring conflict between the military establishment's needs and
those of the civilian intelligence community reflects the fundamental
distinction between the foreign affairs and war-making powers and
the institutional rivalries which this Constitutional dichotemy
facilitates in the executive departments.
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supervisory body like the NSC eliminates most of the organizational
problems which the DCI would confront in a dual role.
d. Appointing a separate intelligence adviser to the White House
A second alternative is the appointment of a senior intelligence
advisor apart from the DCI and not responsible to the NSC. The advisor
would assume the additional duties the President would have assigned
to a senior intelligence officer like the DCI. In fact, the use of
advisory personnel whose functions would either
duplicate the work of the NSC or the DCI is not
Past Presidents have relied greatly on
meetings of special advisory groups or
informal
advisors
supplement or
a novel practice.
but regularly attended
to help formulate
intelligence related policies and operations. While there would not
be legal obstacles to the appointment of an independent White House
advisor on intelligence matters, it would encounter the same type of
political objections as in the above dual role conception. 11/ Also,
the advisor's functions should be consistent with the Act.
2. Altering the Responsibilities of the National Security Council
Any changes in the duties and responsibilities of the National
Security Council require a discussion of issues similar to those
raised above. (See CHART B at the conclusion of this section.)
The National Security Council is under the direct authority of the
President and serves as the umbrella supervisory body over the
intelligence community, filtering down the Presidential directives
and assignments.
11. See Note 1Q supra.
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While the President has certain inherent powers over the
conuuct of foreign affairs, it is.doubtful that he can delegate
the use of such powers to a Congressionally created body unless
the delegation is consistent with the broad outline of the NSC's
statutory duties. Neither residual or independent powers exist in
the Council other than the basic ministerial authority to perform
the advisory function. The Council does have the equivalent of a
derivative ministerial authority from the President by virtue of
the broad statutory grant vested in him to direct the NSC's
activities. In this respect, the organizational structure
established by Congress in the NSA gives the President a significant
amount of discretion in using the NSC in its advisory role. But despite
the NSC's functional administrative utility, previous Presidents have
found it desirable to rely on informal high level advisory committees.
Professor Jerrold Walden's analysis of the administration of the CIA
traces the development of this type of parallel advisory structure by
reviewing the frequency of NSC meetings. He states, for example,
that President Kennedy eliminated the regular meetings of the Council
and President Johnson "virtually abandoned" the NSC (quoting a news
magazine story), relying instead upon the "Tuesday Luncheon" group. 121
The propriety in utilizing these so-called informal groups
rather than pursuing the policy objectives through the NSC is
questionable. To the extent that these groups supplant the role
12. Jerrold Walden, "The CIA: A Study in the Arrogation of
Administrative Powers," 39 Geo. Wash. L. Rev., 66, 90 (October 1970).
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of the NSC in the formulation of policies, possible conflicts
under the Act could arise unless the President has authority
to act independently. The formation of Presidential level
advisory groups to supplement the work of the NSC is not inconsistent
with the NSA. However, a transfer of duties to these groups which
the statute expressly assigns to the NSC would violate the statutory
scheme again unless the President can act independently.
3. Appointing of Advisory Committees
Both the President and the NSC have established advisory
committees to assist the intelligence community. 13/ Section 405(a) of
the Act provides that the DCI and the NSC "are authorized to appoint"
the advisory committees they deem necessary to assist them in the
execution of their advisory functions and duties. 14/ The President is
not included in the authority conferred by this section of the Act.
15/ The President's authority to appoint committees to aid the NSC or
the DCI must, therefore, be implied from his authority to direct the NSC.
13. These would include PFIAB, set up by Presidential Directive, and
the various committees created by secret NSCID's or DCID's which aid
the work of the NSC or the DCI like the NSCIC, IRAC, and the IC Staff.
14. 50 U.S.C. 405 (1964).
15. President Truman apparently circumvented the requirement that the
NSC or the DCI, at the time, the Chairman of the Resources Board,
appoint advisory committees they needed. Truman established the
National Advisory Committee on Mobilization Policy by executive order
to aid the National Security Resources Board. E.O. 101609, 15 F. R.
6901 (Oct. 13, 1960).
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16/ The President's power is thereby procedurally limited in that it
qiust be exercised through the NSC.
In contrast with the advisory committees established to facilitate
the work of the NSC and the CIA, the President has the direct authority
to appoint advisory panels to advise him on intelligence matters. An
example of such a panel is the President's Foreign Intelligence Advisory
Board (PFIAB) which advises the President on intelligence activities
after examining the "objectives conduct, management and coordination
of the various activities making up the overall national intelligence
effort." 17/ However, as in the case of other delegations of
Presidential authority to non-statutory bodies, any such delegations
to PFIAB of functions or duties which have been expressly reserved by
statute for a body like the NSC, would be contrary to the allocation
of such functions and duties as set forth in the Act. 18/
16. Section 405 could be interpreted merely as a procedural provision,
thus, not excluding the President from directly appointing advisory
committees to aid the NSC and the DCI. The provision was probably
enacted to facilitate the work of the NSC and the CIA and not to restrict
the President from taking a direct and active role in helping to organize
the then newly created civilian intelligence community. In contrast
with the procedural nature of Section 405, Section 402, for example,
is more substantive and the failure to include the President in direct
CIA supervision reflects the Congressional intent to place the Agency
under direction control of the NSC.
17. PFIAB was created in 1961 by President Kennedy, replacing the
President's Board of Consultants on Foreign Intelligence Activities
which was appointed by President Eisenhower in 1956. E.O. 10938,
26 F. R. 3951 (May 4, 1961). President Nixon changed PFIAB in 1969.
E.O. 11640, 34 F. R. 5535 (March 20, 1969).
18.- See generally Note 8, supra.
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4. Conclusions
a. The President can add to or change those duties of the DCI
which would not amend the NSA and which are within the range of
duties that can be implied from 50 U.S.C. 403(d). Such changes may
be initiated by the NSC or the President through the NSC.
b. The appointment of a senior intelligence advisor,
coordinator, or other assistant to aid the President is a valid
exercise of Presidential authority provided that the duties and
functions of such an advisor do not conflict with those assigned
by the NSA to the NSC or the CIA. However, the appointment of
such an assistant to the President would be politically undesirable
because it would increase the-rivalry between the civilian and
military intelligence services.
c. The President can direct the NSC to perform additional
functions and duties provided that they are consistent with the
advisory role of the Council and are otherwise consistent with the
provisions of the NSA.
d. The President should work through the NSC in directing the
creation of additional advisory committees to aid the work of the
CIA and the NSC. The President's own advisory committees can
perform advisory activities which parallel the work of the NSC but
such committees should not usurp the management and supervisory functions
the NSA directs the Council to perform.
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IRAC
USIB
IC STAFF
OTHER
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CHART A: DCITS FUNCTIONS IN THE INTELLIGENCE COMMUNITY
DIRECTOR
OF
CENTRAL INTELLIGENCE
--S. 405 Appoint Advisory
Committees
S. 403(a) Directs the
activities of the CIA under
direct supervision of the NSC
S. 403(d)(5) Perform other
"functions and duties" apart
from (1-4) above
STATE
DEPT.
OTHER
EXEC.
DEPTS.
CENTRAL
INTELLIGENCE
AGENCY
DEPARTMENT OF DEFENSE
1--S. 403(d)(1)-(4) Perform various
1 functions and coordinating duties
1
1--S. 403(d)(5) Perform other "functions
I and duties" apart from (1-4) above
I--S. 403(c) DCI can inspect FBI intelligence
1--S. 403(g) Exempts the DCI from disclosure
laws to protect "sources and methods"
after making a written request provided it
relates to national security. Other depart-
mental intelligence is available as
recommended by the NSC and approved by
the President
--S. 403(h) Determines with Attorney General
and Immigration Commissioner the admission
of essential aliens
NSA
DIA
SERVICE
BRANCHES
ERDA
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1
FBI
THE NSC'S & THE PRESIDENT'S ADMINISTRATION
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Chart B
--President has independent
power to appoint own advisors
SENIOR
INTELLIGENCE
ADVISOR
TUESDAY
LUNCHEON
GROUP
OTHER
ADVISORY
GROUPS
PRESIDENT
PFIAB
--set up by E.O.
--402(a) Preside over NSC or designate
someone else
Appoint members to NSC
--402(b)(d) Direct NSC
-403(a) Appoint
--403(e) Approve
DCI.
DCI inspection of other
departmental intelligence
NATIONAL SECURITY
. President/Chairman
2. Vice President
3. Sect'y of State
4. Sect'y of Defense
. Sect'ys and Under-
Sect'ys
Advisors appt'd by
President*
*Different Administrations have
appointed various officials to
an advisory non-voting status on
the NSC.
(Sections referred to
are keyed to the National
Security AAi)064/elinni-Rele
merits.)
COUNCIL
. 402(b)
402(a) Advises President
402(b) Performs other functions
President directs
- 402(b)(1)(2) Various advising duties
402(d) Makes reports/recommendations
to President
403(a) Supervises and directs the
CIA
- 403(e) Recommends to President what
other departmental intelligence
shall be open to DCI inspection
-- 405(a) Appoints advisory committees it
needs
CENTRAL INTELLIGENCE
e 2004/16kalA-RDP78M02660R000200010042-0