Constitutionality o f Proposed Statutory Provision

Requiring Prior Congressional Notification for

Certain CIA Covert Actions

A proposed statutory provision that would oblige the President to notify Congress of any 

and all covert actions (other than those for the purpose of intelligence-gathering) to be 

funded out of the Reserve for Contingencies, regardless of the circumstances, would 

unconstitutionally infringe upon the President’s constitutional responsibilities, including 

his duty to safeguard the lives and interests of Americans abroad.

July 31, 1989 

M em orandum O pin io n fo r the Attorney G eneral

This is in response to your request for our opinion on the constitutionality of a proposed amendment to section 502 of the National 

Security Act, 50 U.S.C. § 414. That amendment would prohibit the 

expenditure or obligation o f any funds from the “Reserve for Contingencies” for any covert action in a foreign country (other than for the 

purpose of intelligence-gathering) if the President has not first notified 

the appropriate congressional committees of the proposed expenditure. 

For the reasons stated below, we believe such a requirement is an unconstitutional condition on the President’s authority to conduct covert 

activities abroad pursuant to the President’s constitutional responsibilities, including his responsibility to safeguard the lives and interests of 

Americans abroad.

Title 22, section 2422, of the United States Code, prohibits the expenditure of funds

by or on behalf of the Central Intelligence Agency for operations in foreign countries, other than activities intended 

solely for obtaining necessary intelligence, unless and until 

the President finds that each such operation is important to 

the national security of the United States.

The proposed amendment would further limit the President’s ability to 

conduct certain intelligence activities important to the national security 

of the United States. It would add as a proviso to section 502 of the

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National Security Act, 50 U.S.C. § 414, a requirement that “no funds from 

the Reserve for Contingencies may be expended for any operation or 

activity for which the approval of the President is required by section 662 

of the Foreign Assistance Act of 1961 (22 U.S.C. § 2422), or for any significant change to such operation or activity, for which prior notice has 

been withheld.”

We believe the proposed amendment is unconstitutional because it 

would oblige the President to notify Congress of any and all covert 

actions to be funded out of the Reserve for Contingencies, regardless of 

the circumstances. It would apply even if the President is directing an 

extremely sensitive national security activity within his exclusive responsibility under the Constitution. We need not define all that is comprehended within the grant to the President of “the executive Power ... of 

the United States of America,” U.S. Const, art. II, § 1. At a minimum, that 

power encompasses the authority to direct certain covert actions without 

first disclosing them to Congress, among which are those actions necessary to protect the lives and property of Americans abroad. Early judicial 

recognition of this authority of the President to take action to protect 

Americans abroad came during a mid-nineteenth century revolution in 

Nicaragua. On the President’s orders, a naval gunship bombarded a town 

where a revolutionary government had engaged in violence against 

Americans and their property. Of this action it was said:

As the executive head of the nation, the president is made 

the only legitimate organ of the general government, to open 

and carry on correspondence or negotiations with foreign 

nations, in matters concerning the interests of the country 

or of its citizens. It is to him, also, the citizens abroad must 

look for protection of person and of property ....

Now, as it respects the interposition of the executive 

abroad, fo r the protection o f the lives or property of the citizen, the duty must, of necessity, rest in the discretion of

the president.

Durand v. Hollins, 8 F. Cas. Ill, 112 (C.C.S.D.N.Y. 1860) (No. 4186) 

(emphasis added). At least to the extent the amendment would limit that 

authority, it is unconstitutional.

The courts have also recognized that the President must be able to act 

secretly in order to meet his constitutional responsibilities in foreign 

affairs. In United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 

320-21 (1936), the Court expressly endorsed President Washington’s 

refusal to provide the House of Representatives with information about 

treaty negotiations even after the negotiations had been concluded. A fortiori, such information could be withheld during the negotiations.

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The Court has more recently emphasized that the core presidential 

responsibility for protecting confidential national security interests 

extends beyond matters concerning treaties and into diplomatic and military secrets such as covert actions. United States v. Nixon, 418 U.S. 683, 

712 n.19 (1974) (recognizing the “President’s interest in preserving state 

secrets”). This conclusion is rooted in the original conception of the 

President’s Office, as described by John Jay in the Federalist. There, he 

spoke of the need for “perfect secrecy and immediate dispatch” in the 

field of diplomacy and intelligence gathering.1 He continued:

The convention have done well, therefore, in so disposing 

of the power of making treaties that although the President 

must, in forming them, act by the advice and consent of the 

Senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.

Id. at 392-93 (emphasis added).

We believe that because the Constitution permits the President, where 

necessary, to act secretly to achieve vital national security objectives 

abroad, a rigid requirement o f prior notice for covert operations impermissibly intrudes upon his constitutional authority.

As the Durand court recognized, the grant of executive power is the 

principal textual source of the President’s discretion to act for the Nation 

in foreign affairs. From the First Congress on, this grant has been construed to afford the President discretion to act in the field of foreign 

affairs. This broad power in matters of foreign policy stands in contrast 

to his comparatively limited authority to act alone in the domestic context. President Washington, for example, asserted the President’s prerogative to communicate with Citizen Genet when he sought something for 

a consul, and addressed that request to “the Congress of the United 

States.” It was President Washington who asserted the President’s authority to determine the status of foreign representatives when he later 

demanded Citizen Genet’s recall. President Washington also determined, 

without consulting Congress, that the United States would remain impartial in the war between France and Great Britain; he also refused to share 

with the House of Representatives sensitive information about the negotiation of the Jay Treaty with Great Britain. The First Congress recognized that the conduct of our foreign affairs was to be primarily the 

responsibility of the President, and for that reason located the State 

Department in the executive branch. The Supreme Court has recognized 

that the President alone is empowered to negotiate with foreign countries 

on behalf of the United States. In Curtiss-Wright, 299 U.S. at 319, the 

Court stated:

1 The Federalist, No 64, at 392 (John Jay) (Clinton Rossiter ed , 1961).

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Not only ... is the federal power over external affairs in 

origin and essential character different from that over internal affairs, but participation in the exercise of the power is 

significantly limited. In this vast external realm, with its 

important, complicated, delicate and manifold problems, 

the President alone has the power to speak or listen as a 

representative of the nation. He makes treaties with the 

advice and consent of the Senate; but he alone negotiates.

Into the field of negotiation the Senate cannot intrude; and 

Congress itself is powerless to invade it.

Id. These examples could be expanded upon, but all buttress the conclusion that the President’s authority with respect to foreign affairs is very 

broad, and that certain foreign affairs powers, such as the power to act 

(secretly if need be) to protect Americans abroad, inhere in his Office.

Congress attempts to justify under its power of the purse requiring 

prior notification of all covert actions to be paid for out of the Reserve for 

Contingencies. Congress’s authority incident to its power over the purse 

is broad, and generally includes the power to attach conditions to appropriations, but its power is by no means limitless. For example, Congress 

appropriates money for all federal agencies in all three branches of government. But the fact that Congress appropriates money for the Army 

does not mean that it can constitutionally condition an appropriation on 

allowing its armed services committees to have tactical control of the 

armed forces. Nor does it follow from Congress’ legislative establishment 

of executive branch departments and its appropriation of money to pay 

the salaries of federal officials that Congress can constitutionally condition creation of a department or the funding of an officer’s salary on being 

allowed to appoint the officer. Interpreting the appropriations power in 

this manner would in effect transfer to Congress all powers of the 

branches of government. The Framers’ carefully worked out scheme of 

separation of powers, of checks and balances, would be rendered meaningless. Accordingly, however broad the Congress’ appropriations power 

may be, the power may not be exercised in ways that violate constitutional restrictions on its own authority or that invade the constitutional 

prerogatives of other branches. As the Supreme Court has said, “Lacking 

the judicial power given to the Judiciary, [Congress] cannot inquire into 

matters that are exclusively the concern of the Judiciary. Neither can it

supplant the Executive in what exclusively belongs to the Executive.” 

Barenblatt v. United States, 360 U.S. 109, 112 (1959) (emphasis added).

This well-established doctrine of unconstitutional conditions further 

prevents Congress from using its power over the appropriation of public 

funds to attach conditions to executive branch appropriations requiring 

the President to relinquish his constitutional discretion in foreign affairs. 

Just as an individual may not be required to waive his constitutional

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rights as a condition of accepting public employment or benefits, so the 

President cannot be compelled to give up the authority of his Office as a 

condition of receiving the funds necessary to carrying out the duties of 

his office.2

Congress has also justified such reporting requirements on the basis of 

its need for information to carry out its legislative function. This oversight power, however, is neither explicit, McGrain v. Daugherty, 273 U.S. 

135, 161 (1927), nor “unlimited,” Watkins v. United States 354 U.S. 178, 

187 (1957). It can be exercised only to further a legitimate legislative 

function traceable to one of Congress’ enumerated powers. See McGrain,

273 U.S. at 173-74. There is no enumerated power in the Constitution giving Congress the authority to require the President first to report to a congressional committee prior to undertaking covert activities which are 

exclusively within his province. Any legislative purpose that would be 

served by informing Congress about a covert action can be served by 

notice after the covert action has been initiated or completed.3

Moreover, even in cases in which it can be assumed that Congress has 

a legitimate legislative basis for the requested information, it does not follow that the President invariably should give Congress prior notice of certain covert actions. As President Tyier recognized in 1843, “[i]t can not be 

that the only test is whether the information relates to a legitimate subject of [congressional] deliberation.” 4 James D. Richardson, Messages

and Papers o f the Presidents 220, 223 (1897). A President is under no 

obligation to communicate information to Congress if to do so would 

impair his ability to execute his own constitutional duties. United States

v. Nixon, 418 U.S. 683, 710 (1974). Under some circumstances, prior 

notice to Congress could well frustrate the President’s ability to discharge those duties.

In concluding that the amendment is unconstitutional, we are not denying that Congress has a legitimate role in the formulation of American foreign policy. Nor are we denigrating the value of consulting with members 

of Congress prior to the initiation of a covert operation. We simply 

believe Congress does not require prior notification of all intelligence 

activities paid for out of the Reserve for Contingencies in order to perform its legislative function. Therefore, it lacks the constitutional authority to impose a rigid requirement of notice in all circumstances.

2The doctrine o f unconstitutional conditions has wide application throughout the law For a good general statement o f the doctrine, see Frost & Frost Trucking Co v. Railroad Comm ission , 271 U.S. 583, 

594 (1926)

If the state may compel the surrender of one constitutional nght as a condition of its favor, 

it may, m like manner, compel the surrender o f all It is inconceivable that guaranties embedded in the Constitution o f the United States may thus be manipulated out o f existence.

3 For instance, post-action notification w ill suffice to inform Congress about actions o f foreign nations 

and merchants so that it may regulate “foreign commerce ”

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Conclusion

We conclude that a requirement of prior notice for all covert operations 

funded from the Reserve for Contingencies unconstitutionally infringes 

on the President’s constitutional responsibilities, including his duty to 

safeguard the lives and interests of Americans abroad.

WILLIAM P. BARR

Assistant Attorney General

Office of Legal Counsel

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