Covert Operations: History, Law, and Implications

1. Chapter 15 - Covert Action Part I

2. Basic Types of Covert Actions • Propaganda • How can propaganda blow back in the WWW linked world? • Political action • What are examples where politics changed and we ended up supporting bad people or our enemies?

3. Paramilitary Actions • What was Air America? • What is the downside of covert companies? • Somoza provided bases in Nicaragua to attack Cuba • How did one port town come full circle? • Why do covert operations make you keep bad company? • A question to think about: Is it better to have covert actions done by the military, by the CIA, or by private contractors?

4. Neutrality Act of 1794 • Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both.

5. What did Jefferson say about the Neutrality Act? • If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war, by the authority of its individual citizens. But this is not true either on the general principles of society, or by our Constitution, which gives that power to Congress alone and not to the citizens individually.

6. Does the Neutrality Act Apply to the President? • What if the president says it is alright for a private group to military action, say rescuing a hostage? • What about private companies training foreign armed forces to fight our friends? • What if we are at war? • ...people with whom the United States is at peace...

7. What is the Logan Act? • Congress passed the Logan Act in 1799 to criminalize unauthorized efforts by U.S. citizens to ‘‘influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States. . . .’’ • Could this have been used against Jane Fonda in the Vietnam War? • What about Sean Penn visiting Iraq? • Are there 1st amendment issues? • Has the law been enforced?

8. Implementing the National Security Act of 1947 • Why is it hard to look back to 1947 and make determinations about covert action as it is currently understood? • Why might the formal congressional record not be an accurate picture of whether congress intended for the CIA to carry out cover actions? • Fifth Function - the CIA may: ...perform such other functions and duties related to intelligence affecting the national security as the President or the Director of National Intelligence may direct. • What did the CIA general counsel say in 1947?

9. NSC • What did annex NSC-4[/]A, adopted by the National Security Council (NSC) at its first meeting, provide? • How was this expanded by NSC-10/2? • Were these approved by President Truman?

10. The Cold War • There was little review of CIA covert operations through the 1950s - why? • What does a 1954 report about the CIA tell us the thinking in those days? • What is the tension between accountability and secrecy for covert activities? • What occupied the CIA in the late 1960s and 1970?

11. ‘‘Plausible Deniability’’ • What is plausible deniability and how does presidential approval undermine it? • How did Congress try to limit plausible deniability in 1974? • What is the recourse if the president does not comply with this law? • What does this tell us about questions of whether CIA was authorized to carry out covert actions? • How can plausible deniability let subordinates hijack policy?

12. US v. Lopez-Lima, 738 F.Supp 1404 (1990) • What was defendant charged with? • How is it that he is on trial in the US? • Where did he spend most of the previous 20 odd years? • Who did the hijacker say sent him to Cuba? • Why? • Why a hijacking?

13. Strategy of the Defense • What is the defense? • What is the real purpose of the defense in this case? • Does the CIA want to provide the information to support this defense? • What is the judge supposed to do if the legal effect of the agency not complying with a discovery order because the information is classified means that the defendant cannot mount an effective defense?

14. What is the Materiality Test? • What does the judge have to evaluate to determine if the information is essential to the defense? • In this case, is the information essential to the defense if the CIA did not have the authority to authorize the hijacking? • Can the defendant claim detrimental reliance?

15. What was the CIA's Authority in 1964? • What does Executive Order 12,333 provide? • Does this really tell us what the law is? How can the president create an exception to this executive order? • Since Executive Order 12,333 was not signed in 1964, what do we need to know about it? • What did the Church Committee find that supports defendant's theory? • Even if the order was new policy, what else does the judge have to determine?

16. NSC Precedent • Why is Section 5 and NSC-4[/]A important in the court's analysis? • How was this expanded in National Security Council Directive 5412-1? • Did the CIA have to clear its actions with the Department of Justice? • Was there evidence that the agency carried out activities that broke laws? • What is the evidence that Congress did not care?

17. Post-Nixon • How did the Hughes-Ryan Amendment change this in 1974? • What prompted this amendment? • What did the court find about the authority of the CIA to authorize the hijacking? • What of the claims by the administrative that if it had authorized it, that would have been illegal and that defendant cannot rely on the authorization?

18. Defendant's Burden • What else does the court say the defendant must show to use this defense? • What will he need to do that? • How does this put the CIA in a bind? • Judge Ryskamp tossed out the air piracy charge during a two-day hearing on whether the defendant's right to a speedy trial had been violated.

19. Chile • What was the CIA doing in Chile in 1970? • What was the CIA's role in the coup in 1973? • What happened that was unexpected? • Why did we care about Allende? • Who came to power in 1973? • Why was our relationship with him problematic? • What did he do that we knew about?

20. The Church Committee 1976 • What was the Church Committee most concerned with? • What principles did it establish for covert activities? • Must be exceptional, not routine • Must be consistent with American principles • No clandestine funding for bad guys who do bad things just because they are on our side • Congress has to decide on that • Should consider long term consequences of the actions

21. Procedural Limits on Covert Action • What procedural limits did it recommend? • Everything is reported to the congressional oversight committee before it is done • Unexpected actions can only be funded from a fixed contingency fund, must be reported, and the fund will not be topped up until approved by the committee • How did Ford and Carter defuse the pressure for congressional action?

22. The Intelligence Budget • Why is the intelligence budget secret? • What did the United States Supreme Court rule in the taxpayer lawsuit to for the disclosure of the budget under the Statement and Account Clause? • How is the money funneled to the agencies? • Thus, funds for the intelligence community are first concealed in various inflated appropriation bills and then secretly transferred by OMB to the intelligence agencies after the bills are enacted.

23. The Hughes-Ryan Amendment - Funding Limits • (a) No funds appropriated under the authority of this or any other Act may be expended 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 and reports, in a timely fashion, a description and scope of such operation to the appropriate committees of the Congress... • Military actions are exempt as are actions under the War Powers Resolution

24. Statutory Changes • Is the proposed list of banned activities - next slide - realistic? • Was Congress able to pass this list and get it signed into law?

25. The Banned List • (1) the support of international terrorist activities; • (2) the mass destruction of property; • (3) the creation of food or water shortages or floods; • (4) the creation of epidemics or diseases; • (5) the use of chemical, biological, or other weapons in violation of treaties or other international agreements to which the United States is a party; • (6) the violent overthrow of the democratic government of any country; • (7) the torture of individuals; or • (8) the support of any action, which violates human rights, conducted by the police, foreign intelligence, or internal security forces of any foreign • country. [§135(a).]

26. Intelligence Oversight Act of 1980 • Review this act - it was all the formal legislation that resulted from the Church Committee • What are the duties? • What are limitations of the Act? • Does it require congressional permission for covert activities? • What is the duty of the House and Senate? • Which excuse for reporting to congress did this Act eliminate?

27. Executive Orders implementing the Church Committee report • Why did Ford and Carter want to do this by executive order rather than legislation? • What was Executive Order No. 11,905 • Operations Advisory Group • What did Executive Order No. 12,036 do? • Replaced OAG with Special Coordination Committee • What does Executive Order 12,333 do?

28. 12,333 Under Regan • President Carter’s Executive Order No. 12,036, 43 Fed. Reg. 3675 (Jan. 24, 1978), defined ‘‘covert activities’’ as secret ‘‘activities conducted in support of national foreign policy objectives abroad which are designed to further official United States programs and policies abroad.’’ • The italicized part of this language was omitted from Executive Order No. 12,333, §3.4(h). Is the difference legally significant?

29. Review and Implementation • What was the criticism of the reviewing role of the NSC? • What was the purpose of the intelligence oversight board (IOB) as constituted by Executive Order No. 12,334? • Unlike the Carter IOB, the Reagan IOB was designed to scrutinize the legality but not necessarily the propriety of activities.