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Published online by Cambridge University Press: 27 February 2017
As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action—before the intelligence oversight reforms of the 1970s—Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority 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,” Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an end with the Watergate disclosures of intelligence activities that many Americans found reprehensible, the ensuing investigations into assassination attempts and other controversial covert actions, and the adoption of a new statutory framework for congressional oversight of the intelligence agencies.
1 National Security Act of 1947, 50 U.S.C. §403(d)(5) (1982).
2 See generally S. Rep. No. 755, 94th Cong., 2d Sess. (1976) [hereinafter Church Comm. Report].
3 Sec Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
4 For a compilation of the Boland amendments, see Legislation relating to Nicaragua, 26 ILM 433, 440 (1987) [hereinafter Legislation].
5 See S. Rep. No. 665, 98th Cong., 2d Sess. 4–12 (1985).
6 See S. Rep. No. 216 and H.R. Rep. No. 433, 100th Cong., 1st Sess. (1987) [hereinafter Iran-Contra Report].
7 See, e.g., Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 Yale L.J. 1255 (1988).
8 Exec. Order No. 12,333, §3.4(h) (1981), reprinted in 50 U.S.C. §401 (1982) (definition of “special activities”).
9 U.S. Const. Art. I, §8, els. 11–16.
10 See generally L. Henkin, Foreign Affairs and the Constitution 74–76 (1972); see also U.S. Const. Art. I, §8, cl. 3 (foreign commerce power). The power of the purse is a further source of congressional authority over both forcible and nonforcible covert actions.
11 Cf. U.S. Const. Art. I, §8, cl. 10.
12 Intelligence Oversight Act, 50 U.S.C. §413(a)(1), (b) (1982); see also Hughes-Ryan amendment to the Foreign Assistance Act, 22 U.S.C. §2422 (1982). Ironically, some of the most sensitive or intrusive intelligence operations are collection activities—for example, aerial reconnaissance and submarine penetrations of territorial waters. Although Congress has opted to treat intelligence collection differently from covert action, Congress does regulate intelligence collection in various ways, without constitutional complaint from the Executive. See, e.g., Foreign Intelligence Surveillance Act, 50 U.S.C. §§1801, 1808 (1982).
13 Pub. L. No. 93-148, 87 Stat. 555 (1973) (50 U.S.C. §§1541–1548) (1982)) [hereinafter Resolution]. The Resolution applies to “United States Armed Forces.”
14 See generally Bentley, Keeping Secrets: The Church Committee, Covert Action, and Nicaragua, 25 Colum. J. Transnat’l L. 601, 618–19 n.78 (1987) (discussing rejection of amendment that would have expanded coverage of Resolution to include covert action).
15 Resolution, supra note 13, §§5–7.
16 Supra note 12.
17 22 U.S.C. §2422. The “finding” process requires the President to take personal responsibility for authorizing a covert operation.
18 Id. As originally enacted, this law required reporting “to the appropriate committees of the Congress, including the Committee on Foreign Relations of the United States Senate and the Committee on Foreign Affairs of the United States House of Representatives.” The 1980 Act allocated the oversight function to the intelligence committees, in lieu of the unwieldy multiple committee participation under the 1974 Act.
19 50 U.S.C. §413(a)(1).
20 Resolution, supra note 13, §§3, 4(a)(1).
21 Compare id. §§3, 4(a), with 50 U.S.C. §413(a), (b). In the Iran-contra affair, the Executive deferred notice for some 11 months. While this long deferral was undoubtedly inconsistent with the legislative intent, the statute is far from clear on when notice must be given. The congressional argument is that most or all notifications should be given “prior” to initiation of the activity, but there are nonfrivolous arguments to the contrary. Concerning the prior notice issue, see generally Iran-Contra Report, supra note 6, at 414–15 (maj. rep.), 543–46 (min. rep.).
22 Resolution, supra note 13, §2(c).
23 Id. §5(b), (c). The concurrent resolution feature of §5(c) is, of course, in jeopardy after INS v. Chadha, 462 U.S. 919 (1983).
24 50 U.S.C. §413(a)(1).
25 Thus, the World Court in the Nicaragua case could condemn the United States for “covert” paramilitary support of the contras on the basis of an evidentiary record drawn largely from official statements and U.S. government documents. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 39–44 (Judgment of June 27) [hereinafter Nicaragua].
26 Bentley, supra note 14, at 644–45.
27 Under the Resolution, it is participation of U.S. armed forces rather than supply of weapons that brings its provisions into play.
28 The provisions of the Arms Export Control Act arguably relevant to covert operations are discussed in Scheffer, U.S. Law and the Iran-Contra Affair, 81 AJIL 696 (1987).
29 See Iran-Contra Report, supra note 6, at 380, 418.
30 Compare id. at 380–81, 418–19, 425–26 (maj. rep.), with id. at 539–47 (min. rep.).
31 Transactions falling below certain dollar thresholds are exempt from most of the requirements of the AECA, but different thresholds apply to transfers made by intelligence agencies under the intelligence oversight legislation. See generally SchefFer, supra note 28, at 703–04, 708–09.
32 See Clark amendment (Angola), 22 U.S.C. §2293 note (repealed 1985), and Boland amendments (Nicaragua), supra note 4.
33 Thus, the Executive has obtained congressional approval for massive support to the Afghan resistance. From time to time in the checkered history of the Nicaraguan program, funds have been appropriated for vast quantities of lethal aid. See generally Legislation, supra note 4, at 440–78.
34 See I Church Comm. Report, supra note 2, at 160, 448; see also S. Rep. No. 465, 94th Cong., IstSess. (1975). But see 18 U.S.C. §§112, 878, 1116, 1201 (1982).
35 Exec. Order 12,333, supra note 8, §2.11 (“No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination”).
36 As a matter of constitutional power, the President may countermand any constraints embodied in executive orders that he or his predecessors may have issued. Whether an executive order should be rescinded in accordance with the same procedures used to promulgate it, e.g., through publication in the Federal Register, is an issue of procedural nicety rather than constitutional power. Cf. Iran-Contra Report, supra note 6, at 542 n.** (min. rep.) (citing Justice Department memorandum arguing that presidential authorization can create an exception to an executive order).
37 In addition to the several episodes examined by the Church Committee, supra note 34 (involving Fidel Castro, Patrice Lumumba, General René Schneider of Chile, and others), incidents during the Reagan Presidency have raised questions of consistency with the policy against assassination. The CIA produced a “Psychological Warfare Manual” for the use of the Nicaraguan contras, some passages of which could have been interpreted to call for assassination. See generally Nicaragua, 1986 ICJ Rep. at 65–69; H.R. Rep. No. 1196, 98th Cong., 2d Sess. 15–16 (1985); S. Rep. No. 665, supra note 5, at 12–13. There has also been speculation that Colonel Muammar Qaddafi was a target of the April 1986 air strike against Libya, in which Qaddafi’s adopted daughter was killed. The CIA General Counsel has reportedly advised that preemptive raids against terrorist bases and military actions taken in “self-defense” do not constitute assassination, even if foreign officials die in the attack. B. Woodward, Veil 362, 394 (1987).
38 The U.S. air strike against Libya was reported to Congress “consistent with the War Powers Resolution.” See 22 Weekly Comp. Pres. Doc. 499 (Apr. 16, 1986); Self-Defense against Terrorism, 80 AJIL 636,643 (1986) (testimony of Abraham Sofaer) [hereinafter Sofaer].
39 See note 12 supra. Collection of information about international terrorism by means of electronic surveillance is governed by the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §1801 (1982).
40 See Sofaer, supra note 38, at 643 (citing §1453 of the 1986 Department of Defense Authorization Act).
41 See, e.g., Senate debate on the Terrorist Prosecution Act, 132 Cong. Rec. S1382–87 (daily ed. Feb. 19, 1986) (statement of Sen. Specter urging abduction of terrorists from sanctuary countries for prosecution in United States).
42 National Endowment for Democracy Act, 22 U.S.C §4414(a)(1) (Supp. V 1987). See generally Damrosch, Politics Across Borders, 83 AJIL 1, 17–21 (1989).
43 See, e.g., Katzenbach, Foreign Policy, Public Opinion and Secrecy, 52 Foreign Aff. 1, 15–16 (1973).
44 A proposal that would have banned the use of covert techniques to undermine any government was rejected at the time of adoption of the Hughes-Ryan amendment. See 1 Church Comm. Report, supra note 2, at 502–03.
45 It goes without saying that oversight of the CIA is carried out secretly: the NED, in contrast, must justify its programs publicly. The NED is subject to the Freedom of Information Act, while the CIA enjoys a special exemption from the Act. Compare National Endowment for Democracy Act, 22 U.S.C. §4415 (Supp. V 1987), with Central Intelligence Information Act, 50 U.S.C. §431 (Supp. IV 1986).
46 Congress is required to preserve any secrets confided in it by the Executive. 50 U.S.C. §413(d)(1982).
47 The Intelligence Oversight Act, for example, qualifies the notification requirement with the words “To the extent consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches of the Government” (emphasis added). Executive branch lawyers have argued that notification was not statutorily required if the executive branch had a constitutional duty that would be impaired by notification. While resolution of this argument requires a theory of the Constitution, the issue nonetheless boils down to one of statutory interpretation.
48 Youngstown concurrence, 343 U.S. at 637 (Jackson, J.).
49 Id. at 640.
50 U.S. Const. Art. I, §9, cl. 7.
51 See generally Iran-Contra Report, supra note 6, at 423–27.
52 See W. Cohen & G. Mitchell, Men of Zeal 279–88 (1988); Koh, supra note 7, at 1272 n.77, 1339 n.388.
53 Ely, Suppose Congress Wanted a War Powers Act That Worked?, 88 Colum. L. Rev. 1379 (1988).