Chapter 15 - Covert Action
Part I
Basic Types of Covert Actions
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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?
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Paramilitary Actions
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What was Air America?
 What is the downside of covert companies?
Somoza provided base 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?
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Neutrality Act of 1794
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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.
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What did Jefferson say about the
Neutrality Act?
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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.
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Does the Neutrality Act Apply to the
President?
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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...
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What is the Logan Act?
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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?
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Implementing the National Security Act of
1947
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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?
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NSC
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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?
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The Cold War
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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?
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‘‘Plausible Deniability’’
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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?
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US v. Lopez-Lima, 738 F.Supp 1404 (1990)
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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?
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Strategy of the Defense
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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?
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What is the Materiality Test?
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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?
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What was the CIA's Authority in 1964?
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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?
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NSC Precedent
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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?
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Post-Nixon
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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?
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Defendant's Burden
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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.
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Chile
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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?
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The Church Committee 1976
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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
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Congress has to decide on that
Should consider long term consequences of the
actions
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Procedural Limits on Covert Action
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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?
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The Intelligence Budget
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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.
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The Hughes-Ryan Amendment - Funding
Limits
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(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
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Statutory Changes
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Is the proposed list of banned activities - next
slide - realistic?
Was Congress able to pass this list and get it
signed into law?
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The Banned List
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(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).]
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Intelligence Oversight Act of 1980
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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?
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Executive Orders implementing the
Church Committee report
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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?
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12,333 Under Regan
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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?
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Review and Implementation
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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.
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