Covert Action: Legislative Background and Possible Policy Questions
Released: 2013-04-10T00:00:00

Introduction

Some observers assert that since 9/11 the Pentagon has begun to conduct certain types of counterterrorism intelligence activities that may meet the statutory definition of a covert action. The Pentagon, while stating that it has attempted to improve the quality of its intelligence program in the wake of 9/11, has contended that it does not conduct covert actions.

Congress in 1990 toughened procedures governing intelligence covert actions in the wake of the Iran-Contra affair, after it was discovered that the Reagan Administration had secretly sold arms to Iran, an avowed enemy that had it branded as terrorist, and used the proceeds to fund the Nicaraguan Democratic Resistance, also referred to by some as "Contras." In response, Congress adopted several statutory changes, including enacting several restrictions on the conduct of covert actions and establishing new procedures by which Congress is notified of covert action programs. In an important change, Congress for the first time statutorily defined covert action to mean "an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly."

The 1991 statutory changes remain in effect today. This report examines the legislative background surrounding covert action and poses several related policy questions.

Background

In 1974, Congress asserted statutory control over covert actions in response to revelations about covert military operations in Southeast Asia and other intelligence activities. It approved the Hughes-Ryan Amendment to the Foreign Assistance Act of 1961 requiring that no appropriated funds could be expended by the CIA for covert actions unless and until the President found that each such operation was important to national security, and provided the appropriate committees of Congress with a description and scope of each operation in a timely fashion. The phrase "timely fashion" was not defined in statute.

In 1980, Congress endeavored to provide the two new congressional intelligence committees with a more comprehensive statutory framework under which to conduct oversight. As part of this effort, Congress repealed the Hughes-Ryan Amendment and replaced it with a statutory requirement that the executive branch limit its reporting on covert actions to the two intelligence committees, and established certain procedures for notifying Congress prior to the implementation of such operations. Specifically, the statute stipulates that if the President determines it is essential to limit prior notice to meet extraordinary circumstances affecting the vital interests of the United States, the President may limit prior notice to the chairmen and ranking minority Members of the intelligence committees, the Speaker and minority leader of the House, and the majority and minority leaders of the Senate—a formulation that has become known as the "Gang of Eight." If prior notice is withheld, the President is required to inform the committees in a "timely fashion" and provide a statement of the reasons for not giving prior notice.

In 1984, in the wake of the mining of Nicaraguan harbors in support of the Nicaraguan Democratic Resistance, the chairman and vice chairman of the Senate Select Committee on Intelligence signed an informal agreement—which became known as the "Casey Accords"—with then-Director of Central Intelligence (DCI) William Casey establishing certain procedures that would govern the reporting of covert actions to Congress. In 1986, the committee's principals and the DCI signed an addendum to the earlier agreement, stipulating that the committee would receive prior notice if "significant military equipment actually is to be supplied for the first time in an ongoing operation ... even if there is no requirement for separate higher authority or Presidential approval." This agreement reportedly was reached several months after President Reagan signed the January 17, 1986, Iran Finding which authorized the secret transfer of certain missiles to Iran.

Following the Iran-Contra revelations, President Ronald Reagan in 1987 issued National Security Decision Directive 286 prohibiting retroactive findings and requiring that findings be written. The executive branch, without congressional consent, can revise or revoke such National Security Directives.

In 1988, acting on a recommendation made by the Congressional Iran-Contra Committee, the Senate approved bipartisan legislation that would have required that the President notify the congressional intelligence committees within 48 hours of the implementation of a covert action if prior notice had not been provided. The House did not vote on the measure.

Still concerned by the fall-out from the Iran-Contra affair, Congress in 1990 attempted to tighten its oversight of covert action. The Senate Intelligence Committee approved a new set of statutory reporting requirements, citing the ambiguous, confusing and incomplete congressional mandate governing covert actions under the then-current law. After the bill was modified in conference, Congress approved the changes.

President George H. W. Bush pocket-vetoed the 1990 legislation, citing several concerns, including conference report language indicating congressional intent that the intelligence committees be notified "within a few days" when prior notice of a covert action was not provided, and that prior notice could only be withheld in "exigent circumstances." The legislation also contained language stipulating that a U.S. government request of a foreign government or a private citizen to conduct covert action would constitute a covert action.

In 1991, after asserting in new conference language its intent as to the meaning of "timely fashion" and eliminating any reference to third-party covert action requests, Congress approved and the President signed into law the new measures. President Bush noted in his signing statement his satisfaction that the revised provision concerning "timely" notice to Congress of covert actions incorporates without substantive change the requirement found in existing law, and that any reference to third-party requests had been eliminated. Those covert action provisions remain in effect today.

Post 9/11 Concerns

Since the 9/11 terrorist attacks, concerns have surfaced with regard to the Pentagon's expanded intelligence counterterrorism efforts. Some lawmakers reportedly have expressed concern that the Pentagon is creating a parallel intelligence capability independent from the CIA or other American authorities, and one that encroaches on the CIA's realm. It has been suggested that the Pentagon has adopted a broad definition of its current authority to conduct "traditional military activities" and "prepare the battlefield." Senior Defense Department officials reportedly have responded that the Pentagon's need for intelligence to support ground troops after 9/11 requires a more extensive Pentagon intelligence operation, and they suggest that any difference in DOD's approach is due more to the amount of intelligence gathering that is necessarily being carried out, rather than to any difference in the activity it is conducting. These same officials, however, also reportedly contend that American troops were now more likely to be working with indigenous forces in countries like Iraq or Afghanistan to combat stateless terrorist organizations and need as much flexibility as possible.

Late 2008 media reports stated that the U.S. military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan, and elsewhere. According to other media reports, DOD has been paying private contractors in Iraq to produce news stories and other media products to "engage and inspire" the local population to support U.S. objectives and the Iraqi government. The products may or may not be non-attributable to coalition forces.

Adding even more complexity to DOD and CIA mission differences, according to then-Director of National Intelligence Dennis C. Blair, is that there often is not a "bright line" between traditional secret intelligence missions carried out by the military and those by the CIA, requiring that such operations be considered on a case-by-case basis. Mr. Blair said the executive branch would be guided by two criteria. First, the President and those in the military and intelligence chains of command would maintain the flexibility to design and execute an operation solely for the purpose of accomplishing the mission. Second, he said, such operations would be approved by the appropriate authorities, coordinated in the field, and reported to the relevant congressional committees, including the Intelligence, Armed Services, and Appropriations Committees.

Former DNI Blair's views appear to comport with comments previously made by former CIA Director Michael Hayden, who reportedly stated that it has become more difficult to distinguish between traditional secret military and CIA intelligence missions and that any problems resulting from overlapping missions would be resolved case-by-case. Stating the military's perspective, General James R. Clapper, Jr., the Pentagon's former Under Secretary of Defense for Intelligence, testified before the Senate Armed Services Committee that within the statutory context of the meaning of covert action, "covert activities are normally not conducted ... by uniformed military forces." In written responses to questions posed by the Senate Armed Services Committee in advance of the hearing, General Clapper asserted that it was his understanding that "military forces are not conducting 'covert action,'" but are instead confining their actions to clandestine activities. Although testifying that the term "clandestine activities" is not defined by statute, he characterized such activity as consisting of those actions that are conducted in secret, but which constitute "passive" intelligence information gathering. By contrast, covert action, he suggested, is "active," in that its aim is to elicit change in the political, economic, military, or diplomatic behavior of a target. In comments before the committee, he further noted that clandestine activity can be conducted in support of a covert activity. He also distinguished between a covert action, in which the government's participation is unacknowledged, and a clandestine activity, which although intended to be secret, can be publicly acknowledged if it is discovered or inadvertently revealed. Being able to publicly acknowledge such an activity provides the military personnel who are involved certain protections under the Geneva Conventions, according to General Clapper, who suggested that those who participate in covert actions could jeopardize any rights they may have under the Geneva Conventions. He recommended "that, to the maximum extent possible, there needs to be a line drawn (between clandestine and covert activities) from an oversight perspective and as well [sic] as a risk perspective."

Some observers suggest that Congress needs to increase its oversight of military activities that some contend may not meet the definition of covert action, and may therefore, be exempt from the degree of congressional oversight accorded to covert actions. Others contend that increased oversight would hamper the military's effectiveness.

The Senate Intelligence Committee expressed its concern that the then-USD(I) has interpreted Title 10 to expand "military source operations" authority, thus allowing the Services and Combatant Commands to conduct clandestine HUMINT operations worldwide. "These activities can come awfully close to activities that constitute covert action," the committee stated in questions for the record posed to DNI following his confirmation hearing before the committee. Mr. Clapper would subsequently become Director of National Intelligence in August 2010.

Perhaps in an effort to bring clarity to the covert action issue, Department of Defense officials early in the 112 th Congress stated that the law could be updated to reflect U.S. Special Operations Command's current list of core task and the missions assigned to it in the Unified Command Plan. But in doing so, they also noted that Section 167 includes "such other activities as may be specified by the President or the Secretary of Defense," which they argued provides the President and the Secretary the flexibility to meet changing circumstances.

Current Statute Governing Covert Actions

The current statute with regard to covert action remains virtually unchanged since it was signed into law in 1991. In essence it codified elements of the "Casey Accords," the President's 1988 national security directive, and various legislative initiatives.

The legislation approved that year, according to the conferees, for the first time imposed the following requirements pertaining to covert action:

A finding must be in writing. A finding may not retroactively authorize covert activities which have already occurred. The President must determine that the covert action is necessary to support identifiable foreign policy objectives of the United States. A finding must specify all government agencies involved and whether any third party will be involved. A finding may not authorize any action intended to influence United States political processes, public opinion, policies, or media. A finding may not authorize any action which violates the Constitution of the United States or any statutes of the United States. Notification to the congressional leaders specified in the bill must be followed by submission of the written finding to the chairmen of the intelligence committees. The intelligence committees must be informed of significant changes in covert actions. No funds may be spent by any department, agency, or entity of the executive branch on a covert action until there has been a signed, written finding.

The term "covert action" was defined for the first time in statute to mean "an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States will not be apparent or acknowledged publicly."

In 1991, congressional conferees said this new definition was intended to clarify understandings of intelligence activities requiring the President's approval, not to relax or go beyond previous understandings. Conferees also signaled their intent that government activities aimed at misleading a potential adversary to the true nature of U.S. military capabilities, intentions or operations, for example, would not be included under the definition. And they stated that covert action does not apply to acknowledged U.S. government activities which are intended to influence public opinion or governmental attitudes in foreign countries. To mislead or to misrepresent the true nature of an acknowledged U.S. activity does not make it a covert action, according to the conferees.

Exceptions Under the Statutory Definition of Covert Action

In approving a statutory definition of covert action, Congress also statutorily stipulated four categories of activities which would not constitute covert action. They are (1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of U.S. government programs, or administrative activities; (2) traditional diplomatic or military activities or routine support to such activities; (3) traditional law enforcement activities conducted by U.S. government law enforcement agencies or routine support to such activities; and (4) activities to provide routine support to the overt activities (other than activities described in the first three categories) of other U.S. government agencies abroad.

This report addresses the second category of activities—traditional military activities and routine support to those activities.

Traditional Military Activities

Conferees stated:

It is the intent of the conferees that "traditional military activities" include activities by military personnel under the direction and control of a United States military commander (whether or not the U.S. sponsorship of such activities is apparent or later to be acknowledged) preceding and related to hostilities which are either anticipated (meaning approval has been given by the National Command Authorities for the activities and or operational planning for hostilities) to involve U.S. military forces, or where such hostilities involving United States military forces are ongoing, and, where the fact of the U.S. role in the overall operation is apparent or to be acknowledged publicly. In this regard, the conferees intend to draw a line between activities that are and are not under the direction and control of the military commander. Activities that are not under the direction and control of a military commander should not be considered as "traditional military activities."

Routine Support of Traditional Military Activities

Conferees further stated that whether or not activities undertaken well in advance of a possible or eventual U.S. military operation constitute "covert action" will depend in most cases upon whether they constitute "routine support" and referenced the report accompanying the Senate bill for an explanation of the term.

The report accompanying the Senate bill states:

The committee considers as "routine support" unilateral U.S. activities to provide or arrange for logistical or other support for U.S. military forces in the event of a military operation that is to be publicly acknowledged. Examples include caching communications equipment or weapons, the lease or purchase from unwitting sources of residential or commercial property to support an aspect of an operation, or obtaining currency or documentation for possible operational uses, if the operation as a whole is to be publicly acknowledged.

The report goes on to state:

The committee would regard as "other-than-routine" support activities undertaken in another country which involve other than unilateral activities. Examples of such activity include clandestine attempts to recruit or train foreign nationals with access to the target country to support U.S. forces in the event of a military operation; clandestine [efforts] to influence foreign nationals of the target country concerned to take certain actions in the event of a U.S. military operation; clandestine efforts to influence and effect [sic] public opinion in the country concerned where U.S. sponsorship of such efforts is concealed; and clandestine efforts to influence foreign officials in third countries to take certain actions without the knowledge or approval of their government in the event of a U.S. military operation.

As the congressional conferees declared in 1991, timing of such activities—whether proximate to a military operation, or well in advance—does not define "other-than-routine" support of military activities. Rather, whether such activities constitute "other-than-routine" support, and thus constitute covert action, will depend, in most cases, on whether such an activity is unilateral in nature, that is, whether U.S. government personnel conduct the activity, or whether they enlist the assistance of foreign nationals.

House Intelligence Committee Calls on DOD to Inform Committee of Intelligence Activities

In committee report language accompanying the FY2010 Intelligence Authorization Act, the House Permanent Select Committee on Intelligence (HPSCI) expressed its concern that the distinction between the CIA's intelligence-gathering activities and DOD's clandestine operations is becoming blurred and called on the Defense Department to meets its obligations to inform the committee of such activities.

The committee said that DOD frequently labels its clandestine activities as "Operational Preparation of the Environment" (OPE) to distinguish particular operations as traditional military activities and not as intelligence functions. According to the committee's report, the overuse of this term "has made the distinction all but meaningless" and there are no clear guidelines or principles for making consistent determinations in this regard.

The committee stated:

Clandestine military intelligence-gathering operations, even those legitimately recognized as OPE, carry the same diplomatic and national security risks as traditional intelligence-gathering activities. While the purpose of many such operations is to gather intelligence, DOD has shown a propensity to apply the OPE label where the slightest nexus of a theoretical, distant military operation might one day exist. Consequently, these activities often escape the scrutiny of the intelligence committees, and the congressional defense committees cannot be expected to exercise oversight outside of their jurisdiction.

If DOD does not meet its obligations to inform the committee of intelligence activities, the report warned, the committee would consider clarifying the department's obligation to do so.

Possible Policy Issues in the 112th Congress

The lines defining mission and authorities with regard to covert action are less than clear. The lack of clarity raises a number of policy questions for the 112 th Congress, including the following far-from-exclusive list.

How should Congress define its oversight role? Which committees should be involved? Can the U.S. military improve the effectiveness of its intelligence operations without at some point enlisting the support of foreign nationals in such a way that such activity could be viewed as "non-routine support" to traditional military activities, that is, a covert action? Is it appropriate to view U.S. counterterrorism efforts in the context of a global battlefield and to view the military as having the authority to "prepare" that battlefield, and can "anticipated" military action precede the onset of hostilities by months or years? Is it appropriate to view the military as being involved in "a war" against terrorists, and thus its activities as constituting "traditional military activities" as it wages that war? By asserting that its activities do not constitute covert actions, is the Pentagon trying to avoid the statutory requirements governing covert action, including a signed presidential finding, congressional notification, and oversight by the congressional intelligence committees? Or, as Pentagon officials suggest, is DOD, in the wake of 9/11, fulfilling a greater number of intelligence needs associated with combating terrorism that are sanctioned in statute and do not fall under the statutory definition of covert action? Since 1991, when Congress last comprehensively addressed the issue of covert action, has the environment in which the U.S. military operates changed sufficiently to warrant a review of the statute that applies to covert actions? In order to clarify certain Pentagon authorities and covert action guidelines, should Congress consider updating Section 167 of Title 10 to reflect U.S. Special Operations Command's current list of core task and the missions assigned to it in the Unified Command Plan?

In his 1991 signing statement, President George H. W. Bush argued that Congress's definition of "covert action" was unnecessary. He went on to state that in determining whether particular military activities constitute covert actions, he would continue to bear in mind the historic missions of the Armed Forces to protect the United States and its interests, influence foreign capabilities and intentions, and conduct activities preparatory to the execution of operations.