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CHURCH COMMITTEE REPORTS

APPENDIX I
CONGRESSIONAL AUTHORIZATIOX FOR THE CENTRAL INTELLIGENCE
AGEXCY TO CONDUCT COVERT ACTION
In recent years the CIA has spent millions of dollars in countries
all over the world for "covert action." Covert action, as the Central
Intelligence Agency has defined it, is any "clandestine activity designed
to influence foreign governments, events, organizations, or
persons in support of the Umted States foreign policy conducted in
such a manner that the involvement of the U.S. Government is not
apparent." 1 In its purpose to influence events, covert action is distinguished
from clandestine intelligence gathering-Dften referred to as
espionage.2
In the last several years controversy has surrounded the conduct of
covert action by the Central Intelligence Agency. Since covert action
is not listed as a mission of the CIA in either its basic charter, the National
Security Act of 1947, or in the Central Intelligence Agency Act
of 1949, questions arise regarding the authority by which the Agency
undertook it. This report addresses the question of congressional
authorization for covert action. It does not attempt to analyze the
inherent power of the President to make covert action the responsibility
of one of the executive branch agencies.
At the outset, it should be noted that Congress is, in part, responsible
for the ambiguity which clouds the CIA's authority. The National
Security Act was designed to provide flexibility to the newly created
CIA so that it could meet unforeseen challenges. Flexibility was
provided through an undefined and apparently open-ended grant of
authority to the National Security Council, and through it, to the CIA.
Wifhout any indication in the Act's history that the Congress anticipated
covert action or intended to authorize it, and without any executive
branch attempt to obtain from Congress specific authority for the
conduct of cm"ert actions such as sabotage or paramilitary activities,
the NSC directed CIA to undertake these activities. Until 1974, Congress
did not attempt to clarify the Agency's authority in this area,
even after learning about such well-publicized covert actions as the
invasion of the Bay of Pigs.
An analysis of congressional authorization for the conduct of covert
action goes far beyond the study of 30-year-old legislative debates. It
provides evidence of changes in the roles of the President and the Congress
in the formulation, implementation, and review of foreign policy.
1 Testimony of Mitchell Rogovin, Special Counsel to the Director of Central
Intelligence, House Select IntE'lligence Committee, 12/9/75, p. 1730. Covert action
was originally defined by the Kational SE'curity Council as "secret action to
influence events in foreign countries which is so designed that, if discovered,
official U.S. Government participation can be plausibly denied."
2 Covert action also differs from clandestine collection and espionage in that
the latter are designed to obtain intelligence without affecting the source or
revealing the fact that the information has been collected.
(475)
476
It examines the procedures by. which the President and the Congress
have delegated power to the :XSC and the CIA and the effect of those
procedures. It illuminates the way the executin' branch has interpreted
undefined provisions of law. It raises qurstions about congressional
oversight of covert action and particularly the ability of Congress,
in the interest of security, to deny itself information. The result
of the denial has been to allow small numbers of senior members to
exercise the oversight function and to determine how much money the
CIA was to leceive and for what purposes.
Hopefully, this report will not only be useful to those interested in
the past. An examination of the question of congressional authorization
for the conduct of covert action may contribute to a better understanding
of the relationship between the need for secrecy and the
processes of constitutional government. Such an understanding is
necessary as the L"nited States moves into its third century.
Before turning to the National Security Act of 1947, two caveats
are in order. The first and most important is that any attempt to understand
the relationship between Congress and the executive branch
in this area must be based on the evidence available, which is often
quite sparse. For example, the Select Committpe \vas able to locate
the transcript of only one executive session of a congressional committee
considering the National Security Act of 1947, although weeks oT
such sessions were held on this important legislation.
CO\"ert action is now a \vell-defined and understood term. The
second caveat is for the reader to remember that although the U.S. did
undertake what would no\v be called covert action during 'Vorld
'Val' II, the term, and its possible scope, were not clearly understood
in the late 1940's.
A. THE NATIONAL SECURITY ACT OF 1947
Although it has been cited as authority for the CIA to engage in
covert action, the National Security Act of 1947 does not specifically
mention covert action. A review of the hearings, committee reports and
floor debates on the Act reveals no substantial evidence that Cong-ress
intended by passage of the Act to authorize covert action by the CIA.
In addition, a contemporaneous analysis of the Act by the General
Counsel of the CIA concluded that Congress had no idea that, under
the authority of the National Security Act, the CIA would undertake
covert action such as subversion or sabotage.
Congress did intend to provide the newly created CIA with sufficient
flexibility so that it would be able to respond to changing circumstances.
There is no evidence, however, that that flexibility \vas intended
to allow the creation of a peacetime agency engaged in activities
such as paramilitary action or attempted assassination.
Although the evidence strongly suggests that the executive branch
did not intend through the language of the National Security Act to
obtain authorization from Congress for the conduct of covert action,
the record is not absolutely clear. 'Vhether it did or did not so intend,
the executive branch soon seized upon the broad language of the Na477
tional Security Act. Facing what was perceived as an extraordinary
threat from the Soviet Lnion and her allies, coming to believe that the
ollly possible course of action for the Lllited States was to respond
to cOYert action with covert action. the KSC authorized the CIA to
conduct con'lt action. .
1. Te;ctual AnalYlsis
Xow11ere ill the Xational Security Act is covert action specifically
authorized. Section 102 (d) (1» of the Act, however, has been cited as
authority for covert action! That clause authorizes the CIA to "perform
sw:h other functions and duties related to intelligence affecting
the national security as the Xational Security Council JlIay from time
to time direct." 5
This clause was cited in XSC-4-A and NSC 10/2, the early directives
from the National Security Council to the Central Intelligence
~\gency which directed the CIA to conduct covert action.6 The Director
of the CIA has cited the same section in claiming authorization for
cOYert paramilitary activity.'
On its face, the clause might be taken to authorize an enormous
range of activities not otherwise specified in the National Security
Act.8 An important limitation on the authorization, however, is that
! Section 102(d) (4), which authorizes the CIA to "perform for the benefit of
existing intelligence agencies, such additional services of cOlllmon con~rn as the
~ational Security Council determines can be more efficiently accomplished centrally,"
appears on its face to be applicable to covert action to the same extent
as Section 102 (d) (5). Both represent an effort to provide the Agency with some
flexibility in intelligence matters. Section 102 (d) (4), ho\vever. has not been cited
by either the l\'SC or the CIA as authorizing covert action.
A prol'isioll similar to SectiOIl 102 (d I (4) in the Presidential Directive establishing
the Central Intelligence Group. the CIA's predecessor agency, was cited
as the CIG's authority to engage in clandestine collection of intelligence;
Section 102(d) (4) was cited by the l\'ational Security Council in directing
th\' CIA to engage in the same activity.
'50 L.S.C. 403(d) (5).
6 While the CIA has consistently invoked the President's power to authorize
coyprt al'tion. neither XSC 4-A or l\'SC 10/2 mentioned that power; both refprred
to the authority conveyed by the ~ational Security Act.
1 The (i\'nel'al Counsel of the ClA wrote th\' DCI conllllenting on his testimOllY
hefore til\' Subcommittee on Security A~reementsand Commitments Abroad
of the Senate Committee on Foreign Relations as follow.~:
"As for the authority of this A~ency to engage in [covert paramilitary actiYity],
I think you were probably exactly right to stick to thl' language of the Xational
Securit~- Act of 1947, as amended, partieularl~- that portion which says that the
Ag-eIH',I' slJali 'verforlll such other functions and duties related to intellig\'nce
affectin~ the national security as til\' Xational Security Council may from time to
timp flirect.' } ctually. from H)47 on lilY position has been that this is a rather
douhtful statutory authority on which to hang our paramilitary actiyities."
\ "U"u.O.'llHlll,lJ HOIll the t'L-\. (ieueral Council to the Director, Subject: Symington
Suhcommitt\'e IIearin~s. 10/30/69.)
8 One of the witnesses appearing before the executiYe session of the House
CoullnittE'(, Oil Exp,>uditures in the Executh'\' nE'partments on June 27, 1947,
descrihed the funetion of section (d) (;;) as heing to allow the CIA to go beyond
it" pnllJlWratpr! fllJll'tioJls r!uriug an elllPrgency. (Pptl'r Yischer testimony. Hons('
COlllmittee on l'~Xp\'IHlitnres in the Executiye Departments, Hearings on H.R.
2319, G/:!7/47. p. 71'.)
478
the activities must be "related to intelligence affecting the national
security." As Clark Clifford told the Senate Select Committee:
You will note that the language of the Act provides that
this catch-all phrase is applicable only in the event that the
national security is affected. This was considered to be an
important and restricting clause.9
Some covert actions are at least arguably "related to intelligence affecting
the nationul security." .As an individual in the CIA's Office of
the General Counsel noted in a memorandum to the General Counsel:
... it can be argued that many covert activities assigned
to the Agency by the Xational Security Council are at least
"related" to intelligence affecting the national security ...
in the sense that their performance often is intimately dovetailed
with clandestine intelligence operations. use the same
operations and methods and yield important intelligence
results. 10
Not all covert actions. however, have the characteristics suggested
in the above quotation. Many covert operations, such as the invasion
of the Bay of Pigs, have, at best, only the most limited relationship
to intelligence affecting the national security." As the General
Counsel of the CIA wrote in 1947:
Taken out of context and without knowledge of its history,
these Sections [102(d) (4) and (5)J could bear almost unlimited
interpretation, provided that the services performed
could be shown to be of benefit to an intelligence agency or
related to national intelligence.
Thus black propaganda, primarily designed for subversion,
confusion, and political effect, can be shown incidentally
to benefit positive intelligence as a means of checking
reliability of informants, effectiveness of penetration, and so
forth. Even certain forms of S.O. [special operations]
work could be held to benefit intelligence by establishment
of 'VIT [wireless telegraphJ teams in accessible areas, and by
opening penetration points in confusion following sabotage
or riot. In our opinion, howeTer, either activity would be an
unwarranted extewsion of the functiows authorized in Sectiowsl02(
d) (4) and (5). This is based on our understanding
of the intent of Congress at the time these provisions were
enacted.12 [Emphasis added.]
The General Counsel concluded again in 1962 that certain forms of
covert action are not "related to intelligence." Ina memorandum to the
DCI he wrote. "some of the covert cold war operations are related to
intelligence within a broad interpretation of Section 102 (d) (5). It
'Clark Clifford testimony, 12/4/75, Hearings, Yol. VII. p. 51.
10 Memorandum from the CIA Office of the General Counsel to the General
Counsel, 2/6/74, p. l.
11 The secrecy which surrounded the invasion of the Bay of Pigs may well
have interferred with the CIA's mission to correlate and evaluate intelligence
related to the national security. Analysts in the Directorate of Intelligence were
neither informed about, nor asked to evaluate, the invasion plans.
1.2 'Memorandum from the CIA General Counsel to the Director, 9/25/47, p. 1.
479
would be stretching that section too far to include a Guatemala or a
Cuba eyen though intelligence and counterintelligence are essential to
such activities." 13 In this same memorandum, the General Counsel
suggested that, in order for the Xational Security Act to provide
authority for the conduct of the wide range of covert action engaged in
by the CIA, Section 102 (d) (5) would have to read, "perform such
other functlOns and duties related to the national security" as the
XSC might from time to time direct, and not "perform such other
functions and duties related to intelligence affecting the national security."
14 After this interpretation was giYen by the G-eneral Counsel, no
attempt ,,-as made by the executive branch to have the National
::-lecunty Act amended.'5
Only the most strained interpretation of "intelligence affecting the
national security" would allow certain covert actions by the CIA such
as paramilitary activities or the attempted assassination of foreign
leaders to come under ::-lection 102 (d) (5). As some covert actions are
more directly "related to intelligence affecting the national security,"
however, it is important to examine the legislative history 16 of the Na-
13 Memorandum from the CIA General Counsel to the Director, 1/15/62, p. 2.
While the CIA has recently stated that "intelligence" was intended to have a
broader interpretation than the General Counsel indicated in the memorandum,
(See Rogovin, HSIC 12/9/75, p. 175) there is no evidence that Congress intended
the phrase "related to intelligence" to cover such activities as the attempted
assassination of foreign leaders. Under the CIA's expansive interpretation even
this would be authorized as thc a~ents involved in the assassination attempt
might have previously provided intelligence to the CIA.
H General Counsel memorandum, 1/15/62, p. 2.
"In the same memorandum the General Counsel argued that the CIA was
authorized by Congress to condnct covert action as "Congress as a whole knows
that money is appropriated to CIA and knows that generally a portion of it
goes for clandestine activities." Given presidential direction and congressional
appropriation he ad,:ised that additional statutory authority is "unnecessary and,
in view of the clandestine nature of the activities, undesirable." (Ibid.. p. 3.) 1. Le~islative history includes review of the pre-enactment history, including
a history of the predecessor agencies, the history of the enactment, and subsequent
interpretation of the act. Legislative history is used as an aid to statutory
construction where the language of the statute is unclear [United States v. Donrus
Co., 393 U.S. 297 (1965); United States v. Publie Utilities Commission
California, 34fi U.S. 295 (1953)], where placing the "plain language" of a particular
provision in the context of the whole statute creates an ambiguity
[Mastro Plastie Corp. v. National Labor Relations Board, 350 U.S. 270 (1956) ;
Richards v. l"nited States, 369 U.S. 1 (1962)], or where it can be shown that an
application of the literal words would bring about a result plainly at variance
with their purlJose [.Johansen v. United States, 343 U.S. 427 (1952); United
States v. Diekerson, 310 U.S. 554 (1940)]. It is pertinent only to show legislative
intent and, thus, the various kinds of legislative history-hearings, reports, floor
debates-are considered significant according to the likelihood that they indicate
the purpose of the legislature as a whole. For instance, if Congress as a whole
is not. or cannot be, aware of the evidence that a bill would have a particulll.r
effect, or remedy a particular evil, it cannot be assumed that Congress intended
the statute to have that effect. In construing statutes courts will, therefore, consid"
r whether the history manifested in the hearings. reports and floor debates
was made available to the legislators, whether the~' were actually aware of it,
awl the crp(\"nce which the It'l'"islators them~elYes may bave given to it.
In certain instances. an examination of executive sessions may illuminate
the intent of individual members of Congress. Such testimony might also clarify
the I<~xecutive'sinterpretation of a particular piece of legif'lation.
480
tional Security Act to determine if these forms of covert action were
within the range of activities which Congress intended to authorize or
whether they represent what the CIA's former General Counsel called
"an unwarranted extension of the functions authorized in Sections 102
(d) (4) and (5)." Congressional intent is particularly important in this
instance as Congress required the language of Section 102 to be written
into law rather than incorporating an earlier Presidential Directive
by reference. This was done because several Members of Congress
believed that if the CIA's missions were not set out in the statute,
the President could change them at any time simply by amending the
Directive.17
Before turning to the legislative history of the National Security
Act, however it is important to note that Section 102 (d) (5) sets out a
second condition-the CIA must be directed by the NSC to perform the
"other functions and duties." The authority of NSC to direct the CIA
to undertake activities has recently come under attack.IS The question
of whether the KSC must specifically approve each covert action or
whether it can delegate its authority or provide approval in advance
for ,vhole categories-or programs-of covert action has also been
raised. General Vandenberg, who headed the Central Intelligence
Group, the CIA's predecessor body, expressed to the drafters of the
National Security Act his belief that the CIA should not have to come
continually to the NSC for approval for action. According to a CIA
legislative history of the Act, Vandenberg was told that the CIA
would need to come to the NSC only on such specific matters as the NSC
required.19
Over time the practice developed that all politically risky or costly
covert action projects would be brought before the 40 Committee of
the National Security Council, or its predecessors, for approval. However,
low-risk projects could be approved within the CIA. During
some periods of time only a quarter of all covert action projects undertaken
by the CIA-the high-risk, high-cost covert actions-were approved
by the NSC 40 Committee.20 In at least one instance, the 40
'7 Hearings before the House Committee on Expenditures in the Executive Department
on H.R. 2319, National Security Act of 1947 April-July, 1947, p. 171.
See also Transcript, House Committee on Expenditures in the Executive Departments,
Hearings on H.R. 2319, 6/27/47, pp. 57-58. Another reason given for enumerating
the CIA's purpose was that the public would not have access to the
Federal Register and thus would be ignorant of the Agency's missions.
,. See Committee on Civil Rights and the Committee on International Rights of
the Association of the Bar of the City of New York, "Central Intelligence Agency:
Oversight and Accountability," p. 13; and Central Intelligence Agency response
to "Central Intelligence Agency: Oversight and Accountahility." p. 21.
For a discussion of the President's authority to direct the CIA to undertake
various forms of covert action in the absence of congressional authorization, or
when Congress has spoken, see chapt. III.
>9 See CIA Legislative Counsel memorandum, "Legislative History of the Central
Intelligence Agency: the National Security Act of 1947," 5/25/67, p. 30 (hereinafter
cited as "CIA's Legislative History".)
20 A 1963 study showed that of the 550 existing covert action projects of the
CIA, which according to the CIA's own internal instruction should have been
submitted to the Special Group (the 40 Committee's predecessor). only 86 were
separately approved (or reapproved) by the Special Group hetween January 1
and December 1, 1962. Memorandum for the Record, C/CA/PEG, SUbject: "Policy
Coordination of CIA's Covert Action Operations," 2/21/67.
481
Committee was not informed about a major covert action-the Track
II attempt in Chile to foment a COUp.21
If Congressional authorization is claimed then the procedures established
by Congress must be honored. If Congress intended covert
actions to be undertaken on an ad hoc basis as specifically directed by
the NSC then that procedure must be follmved. As Chief Justice Marshall
wrote, once Congress has "prescribed ... the manner in which
the law shall be carried into execution" the President is bound to respect
the limitation.22
92. PTeenactrnent HistoTy 23 of -Nw National Se(JUTity Act of 1974:
The OJA's PTedecess01' Agencies
Some of the language of the National Security Act, in particular
Section 102 (d) (5), closely resembles provisions of the Presidential
Directive "'hich established the CIA's predecessor agency, the Central
Intelligence Group, in 1946. The CIG in turn grew out of the wartime
experience with the Office of Strategic Services and its predecessor,
the Office of Coordinator of Information.
The evolution from the Office of the Coordinator of Information
to the Central Intelligence Agency may indicate what the Executive
intended to accomplish through submission of the Central Intelligence
Agency section of the National Security Act of 1947. To the extent to
which Congress was familiar "'ith this evolution, and with the roles
played by the Coordinator of Information, the OSS, and the CIG, it
could be said that Congress understood the meaning of the legislation
which the Executive proposed and sharE'd in the Executive's expectation
of "'hat the legislation would accom])lish.
The Office of the Coordinator of Information was established by
a Presidential Directive of .Tuly 11, 1941. The Directive was preeede,Ci
by a memorandum to the President by 'William .r. Donovan on
.Tune 10, 1941, proposing a centralized intelligence organization with
psychological warfare among its functions. 24 The Directive did not
21 See Senate Select Committee, "Alleged Assassination Attempts Against Forrign
Lraders."
22 Little Y. Barreme, 2 Cranch 170,178 (180f)). If it is Presidential power which
i~ delE-gated, then the procedures established for the delegation cannot be
disregarded.
23 Preenactml'nt history is the term given to events occurring prior to the introduction
of legislation. Sntherland, Statutory Co//struction, § 48.03 (4th ed. 1973).
It encompasses events to which the legislation in question was apparently a
rl'sponse.
Preenactment history is considered hy the courts, in some cases, to he significant
in detl'rmining lel'(islative intent. The challenge is to determine the mischief
which particular legislation is meant to r('medy. Generally, the courts look
to events or patterns of abuse which were well publiciZed and which Congressmen
would most likely know ahout and have in mind when they enacted a
parti('ular law: See f'.g. Clark Y. Fcbcrscc Fianz-Korp.. 322 U.S. 459 (1947).
Thus thf' relaitonship between poor ('oordination of inteIJigence and the suc(,
f'"sful homhing of Pearl Harhor hy thf' .Japanese ('ould he considered as extrinsic
evid"n('e of Congressional intent in passinI'( the National Sl'curitv Act ()f 1947.
24 Memorandum from William .J. Donovan to the Fresidf'nt. 6/10/41. Physical
suhversion and gnerrila warfare were not mentioned in Donovan'" memorandum.
hut tllf'Y were dis('u""ed with Cahinet officers involved and were felt by
Donovan to be implicit with his plan.
482
mention psychological warfare, but authorized the Coordinator of Information
to "collect and analyze all information and data which may
bear upon national security" and to "carry out when requested by the
President such supplementary activities as may facilitate securing
of information important for national security." Like the National
Security Act of 1947, the 1941 Directive was designed for flexibility.
The Presidential Directive establishing the COl made no distinction
betwen overt and clandestine collection. 'Vithin the month, the
COl established a unit to collect intelligence from overt sources, and
by October the COl had begun the collection of information by undercover
agents outside the Western Hemisphere.25 On October 10,
1941, the "Special Activities" unit was established in COl to take
charge of sabotage, subversion, and guerrilla warfare. Thus a Directive
which authorized the collection and analysis of information,
together with supplementary activities "to facilitate securing of information
important for national security" was interpreted within
the executive branch as authorizing what is now known as covert
action.
All of these events preceded the outbreak of World War II. Following
the outbreak of hostilities. President Roosevelt established the
Office of Strategic Services (OSS) by military order dated June 13,
1942. Among the functions assigned to the ass was to "collect and
analyze such strategic information as may be required by the United
States Joint Chiefs of Staff" and to perform "such special services as
may be directed bv the Joint Chiefs of Staff." Pursuant to this order,
the ass undertook both clandestine collection of intelligence and
covert action.27 The assignment of both these functions to the OSS was
opposed by various branches of the Armed Services.
In 1944, William Donovan, then 'head of OSS, wrote to the President
proposing a permanent peacet.ime intelligence service. He suggested
'that the service should collect, analyze, and disseminate "intelligence
on the policy or strategy level," and that it should be responsible
for "secret activities," such as "clandestine subversive operations."
28 At roughly the same time that General Donovan made his
recommendations, General Doolittle proposed an intelligence a~ncy
which would collect intelligence either directly or throug<h existing
agencies and perform subversive operations abroad. The .Toint
Chiefs of Staff and the Department of State eventually responded to
the Donovan proposa1.30 The debate focused on the extent of the new
agency's independence, to whom it should report, and its responsibility
for clandestine collection of intelligence.
In September 1945, OSS was disbanded amid the gtruggle over the
future shape of American intelligence activities. By an Executive
Order dated September 20, 1945, the responsibility for the clandestine
.. The FBI was responsible for information collected by overt and covert
means in the Western Hemisphere.
27 See generally R. Harris Smith. OSS (Berkeley: University of California
Press, 1972).
os Memorandum from William Donovan to the President, October 1944, as cited
in CIA Legislative History, PP. 12-13.
•• CIA Legislative History, pp. 14-17.
483
collection of intelligence was transferred to the War Department,
where the Strategic Services Unit (SSU) was established.3
!
Also transferred to SSU were the ass sections responsible for
covert psychological and paramilitary activities. In a significant bre'ak
with wartime operations, however, these latter sections were to be
liquidated, leaving only such assets as were necessary for peacetime
intelligence.32
In the absence of 'agreement among his advisers, President Truman
directed Admiral Sidney Souers to prepare a plan for the establishment
of a central intelligence organization. On January 22, 1946,
President Truman issued a Presidential Directive 33 which established
the National Intelligence Authority under the direction of the
Director of Central Intelligence. The NIA was to include the Secretary
of State, the Secretary of War, the Secretary of the Navy, and
the personal representative of the President. Under the Directive, the
NIA was to be "assisted by" the Central Intelligence Group, a coordinating
body which drew funds and personnel from other agencies of
the executive. The CIG was to collect, evaluate, and disseminate intelligence
relating to the national security, plan for the coordination
of intelligence agencies, and perform "such services of common concern"
as the National Intelligence Authority determines can be more
efficiently accomplished centrally.34 The CIG was also to perform "such
other functions and duties related to intelligence affecting the national
security as the President and the National Intelligence Authority may
from time to time direct."
Although the House Select Intelligence Committee was told in 1975
that the CIG was assigned the "function of conducting covert action"
35 the former General Counsel of the CIA noted that at the time
of the CIG draft directive "there was really ... no contemplation
wha'tsoever of a program of what might be called covert action." 36
In fact, the CIG does not appear to have been engaged in any covert
action abroad.37 The covert action capability of the government which
had been lodged in ass and then transferred to SSU in the War
Department had 'been, in early 1946, almost totally liquidated.3s The
absence of a covert action program and the decline of the capability
:l1 For the following nine months, until the clandestine intelligence function
was transferred to the Central Intelligence Group, SSU was responsible for
clandestine intelligence gathering.
32 Testimony of Lawrence Houston, former CIA General Counsel. 6/17/75. p. 6.
3Z PreRidential Directive. 1/26/46; 11 Fed Reg. 1337, 2/5/46.
.. The Presidential Dire<ltive made no explicit mention of clandestine collection
of intelligence. It has been suggested that this function was omitted solely to
avoid mention of intelligence collection in a published document. (See CIA's
Legis!ath'e History. 7/25/67. p. 19.)
On JUly 8, 1946, the NIA issued NIA-5 authorizing the CIG to conduct
clandestine intelligence collection outside the United Sta1tes under the authority
of the CIG to perform "services of common concern." NIA-5 resulted in the
transfer of SSU to the CrG and the establishment Within the CrG of the Office of
Special Operations (OSO) to conduct espionage abroad.
35 Rogovin. HSIC Hearings 12/9/75. p. 1733.
.. Houston, 6/17/75, p. 7. '
37 See interviews with Arthur Macy Cox and Lawrence HQuston on file at 'I:1le
Center for National Security Studies.
as Houston, 6/17/75, p. 8.
484
suggests that a covert action mission for the CIA was not clearly anticipated
by either the executive or the Congress.
3. The Enactment of the National Security Act of 1947
Efforts to draft legislation for a central intelligence organization
began almost immediately after the Presidential Directive of J anuary
22, 1946. Statutory authorization was required by the Independent
Offices Appropriation Act of 1944, which provided that no office
could receive funding for more than one year without specific authorization
and appropriation by Congress. A June 7, 194? rerort t?
the NIA by Admiral Souers, who drafted the 1946 PresIdentIal DIrective
and who was the first Director of Central Intelligence, indicated
the CIG's need for its own budget and personnel as well as for
the authority to make certain kinds of contracts.
Lawrence Houston and John ",Varner,39 both then with the CIG,
began to work on a draft which "wuld have established an organization
far removed from t~le coordinating" group concept of the CIG.
The draft included provisions for an independent budget, direct hiring
of personnel, and other administrative authorities which would
allow the new agency to be autonomous and flexible. The provisions
were drawn up after Houston and Warner had analysed the problems
enGountered by the OSS during the war, and were designed to avoid
these difficulties.40 As Houston noted, there was "no specific [covert
action] program" under consideration at that time 41 but the aim of
the draft was to "provide the Agency with the maximum flexibility for
whatever it would be asked to do." 42
In January 1947, another drafting group consisting of Clark Clifford,
Charles Murphy, Vice Admiral Forest Sherman, and Major
General Lauris Norstad, began to consider proposals for an agency to
supercede the CIG, this time in the context of a proposal which would
unify the Armed Services. On February 26, 1947, President Truman
submitted to the Congress a draft entitled, "The National Security
Act of 1947." Title 2 of Section 202 provided for a Central Intelligence
Agency (CIA), which would report to a National Security Council
(NSC). The NSC was to take over the duties of the NIA while the
CIA was to have the functions, personnel, property, and records of
the CIG.
The section in the draft legislation dealing with the CIA did not
spell out, in any detail, its relationship to the rest of the executive
branch or its functional responsibilities. As the framers were primarily
concerned with the unification of the armed services/3 the
draft legislation, according to a memorandum from General Vanden~
erg to Clark Clifford, eliminated "any and all controversial material
msofar as it referred to central intelligence which might in any way
39 Both individuals later served as General Counsel to the CIA. Mr. Hou,ston
occupied that post from 1947 until 1974, and Mr. Warner has occupied it since.
• 0 Houston, 6/17/75, p. 9.
<1 Ibid., p. 10.
.. Ibid.
... CIA's Legislative History, p. 25.
485
hamper the successful passage of the Act." 44 The legislation incorporated
by reference the functions of the CIG as set out in the Presidential
DIrective of January 22, 1946.45
S. 758, the Senate version of the draft legislation was referred to the
Armed ~ervices Committee, while H.R. 4214 was referred to the House
CommIttee on Expenditures in the Executive Department. The Senate
Committee held heuringE for ten weeks: went mto executive session
on May 20, 1947, and reported out an amended version which was
approved by voice vote. The House Committee held hearings from
early April until July 1. On July 19, the House approved the amended
bill and upon receipt of S.758, amended it in accordance with the
language of H.R. 4214. S. 758 emerged from Conference Committee
with the functions of the CIA spelled out rather than incorporated
by reference; the bill was approved by the Senate on July 24, 1947, and
by the House on July 25, 1947.
There is little in the public record of this process to indicate congressional
intent with respect to the CIA's authority to engage in
covert action. The records of public hearings and floor debates on the
National Security Act, as well as the proceedings of a committee
meeting in executive session, support the view that Congress as a
whole did not anticipate that the CIA would engage in such activities.
The record is ambiguous, however, in part because the legislators
and witnesses were concerned that United States security might be
compromised by too full and frank a discussion of American intelligence
needs on the floor of Congress. As Representative Manasco
stated:
Many witnesses appeared before our Committee. They were
sworn to secrecy. I hesitate to even discuss this section, as I
am afraid that I might say something because the Oongressional
Record is a public record, divulge something here that
we received in that Committee that would give aid and comfort
to any potential enemy we have.46
Related to this point is the possibility that ambiguous language was
expressly chosen in order not to offend world opinion. The former
General Counsel of the CIA recalled that some Members of Congress
sought to put in the statutory language the authorization to conduct
espionage and counterespionage. But this we defeated, in "light
.. Memorandum from General Vandenberg to Clark Clifford, cited in CIA's
Legislative History, p. 27.
Administrative provisions for the CIA were omitted from the proposed legislation
in order that unification of tlJe armed servicE'S would not be stalll'd and
because there was some concern that the drafting of these could not be completed
in time. (Ibid., pp. 26, 32.)
According to tlJe CIA's Le~slative HiRtory, "TlJere was a general feeling tlJat
any unnecessary enlargement of the CIA provision would lerd to controversy"
and would affect the legiRlative processing of the :'Iational Security Act of 1947.
(Ibid., p. 32.)
.. These functions had been expanded by NIA-5 to include the clandestine
collection of intelligence.
'·93 Congo Rec. 9605 (1947).
486
of the argument that they didn't want it advertised that this country
was going to engage in such activities." 47
An additional problem in interpreting the available evidence is that
in 1947 no term was clearly understood to mean covert action as the
term is used today. Members of Congress and witnesses used terms
such as "operational activities," "special operations," or and "direct
activities," but these remarks were as likely to have meant clandestine
collection of intelligence as covert action. The following exchange between
Representative Busbey and Secretary Forrestal in public hearings
before the House Committee on Expenditures in the Executive
Departments illustrates this problem:
Mr. BUSBEY. Mr. Secretary, this Central Intelligence Group,
as I understand it under the bill, is merely for the purpose of
gathering, disseminating, and evaluating information to the
National Security Council, is that correct ~
Secretary FORRESTAL. That is a general statement of their
activity. .
Mr. BUSBEY. I wonder if there is any foundation in the rumors
that have come to me to the effect that through the Central
Intelligence Agency, they are contemplating operational
activities?
Secretary FORRESTAL. I would not be able to go into the details
of their operations, Mr. Busbey. The major part of
what they do, their major function, as you say, is the collection
and collation and evaluation of information from Army
Intelligence, Navy Intelligence, the Treasury, Department of
Commerce, and most other intelligence, really. Most intelligence
work is not of a mystical or mysterious character; it is
simply the intelligence gathering of available data throughout
this Government. . . . As to the nature and extent of any
direct operational activities, I think I should rather have
General Vandenberg respond to that question.48 [Emphasis
added.]
Another example is contained in a letter, printed in the hearing record,
from Allen Dulles, then a private citizen but later Director of
Central Intelligence, to the Senate Armed Services Committee. Dulles
recommended that the CIA have its own appropriations, but be able
to supplement these with funds from other agencies, "in order
to carryon special operations which may, from time to time, be
deemed necessary by the President, the Secretary of State, and the
Secretary of National Defense." [Emphasis added.] 49
(7 Houston. 6/17/75, p. 17. See also, memorandum from the CIA General Counsel
to the Director, 5/7/48. In 1974, an individual in the CIA's Office of General
Counsel wrote that additional statutory authoritv for covert action was "unnecessary
and in view of the delicate nature of the activities, undesirable,"
(Memorandum from Stephen Hale to the General Counsel, 2/6/74.)
...Tames Forrest"l testimonv. Honse Expenditures in the Executive Denartments
Committee Hparings on H.R. 2~19, 1947. n. 120. There is no record of any
later statement by General Vandenberg on the subject.
•• Letter from Allen Dulles to the Senate Armed Services Committee, Senate
Armed Services Committee, Hearings on S. 758, 1947, p. 521.
487
Finally, Representative Patterson stated during the floor debates
that while he clearly wanted "an independent intelligence agency
working without direction by our armed services, with full authority
in operation procedures," he knew that it was "impossible to incorporate
such broad autllOrity in the bill now before us...." 50
These exhaust the statements in open session-in hearings or on the
floor-which arguably deal with covert action-although as was previously
noted, they may also be read to refer to clandestine intelligence
gathering. There is no clear explanation of or proposal for covert
action. ~o justification for covert action was presented by the Executive.
51 It would be difficult, based upon these statements, to argue that
Congress intended to authorize covert action by the CIA.
The legislating committees met extensively in executive session to
consider the bill and to discuss the Central Intelligence Agency portions
of it. The Select Committee has been able to locate a transcript
for only one of these sessions, a June 27, 1947 meeting of the House
Committee on Expenditures in the Executive Departments. At that
meeting the wisdom of centralizing the clandestine intelligence collection
function in the CIA was discussed in some detail. Although the
Members and witnesses could put aside the security constraints which
might have inhibited them in open session, this record too is ambiguous.
It does, however, tend to support the proposition that Congress
did not intend to authorize covert action by the CIA.
The CIA has cited two exchanges at this executive session ,for the
proposition that the House Committee on Expenditures "had full
knowledge of the broad implications" of the Presidential Directive
and understood it to authorize the CIG to engage in covert action.
Therefore, according to the CIA, by adopting the National Security
Act, which contained the same broad language as the Directive, Congress
was authorizing the CIA to conduct covert action. 52
The first exchange quoted was between Representative Clarence
Brown and General Hoyt S. Vanderberg, Director of Central Intelligence.
The full context of the remarks which the Agency quoted,
however, clearly indicates that the broad language of the 1946 Directive
had been read to authorize clandestine collection of intelligence.53
60 93 Congo Rec., H9447 (1947).
51 "In none of the formal ... explanations or justifications did we, so far
as I can recall, set forth any program for covert action." (Houston, 6/17/75,
p.10.)
53 Rogovin, HSlC, 12/9/75, p. 1734-35.
53 The exchange quoted by the CIA's Special Counsel is italicized in the followingquote:
"General VANDENRERG. In 'd' of the President's letter (the Presidential Directive
of January 22, 1946), which you read. is the following:
'Perform such other functions and duties related to intelligence affecting the
national security as the President and the National Intelligence Authority may
from time to time direct.'
That was the basis. The Intelligence Advisory Board, which consists of the
Chief of the three departmental intelligence organizations, State, War and
Navy, in consultation with the Director of Central Intelligence, made an exhaustive
study of the best way to centralize, both from the point of view of efficiency
of operations and cost, certain phases of the national intelligence.
Oontinued
488
The CIA also cited the executive session testimony of Peter Vischer,
who opposed the "other functions and duties" clause..He urge~ its
defeat, calling it a loophole "because it enabled the PresIdent to dIrect
the CIG to perform almost any operations." 54 The C~A notes .this
opposition, implies that Vischer opposed the clause as It authorI~ed
covert action, and claims congressional authorization for covert actIOn
because the clause was included in the National Security Act.55 The
full record shows, however, that Vischer spoke specifically in opposition
to centralizing clandestine collection in the CIA. He objected to
the "other functions and duties" language as it would authorize such
collection.56 His objection might have alerted the Committee to "broad
implications" in the language, but not to its potential as authorization
for covert action.
The only clear reference to the activities which are now referred to
as covert action took place in the executive session during an exchange
between Representative Rich and General Vandenberg. Representative
Rich asked, "Is this agency [the CIG] used in anyway as a propaganda
agency?" General Vandenberg responded) "No, sir." 57
Continued
They all felt, together with myself, who was Director at that time, that a
very small portion, but a very important portion, of the collection of intelligence
should be centralized in one place. Now, the discussion went on within
the Intelligence Advisory Board as to where that placeshould be.
Mr. BROWN. May I interrupt just a moment there? In other words, you proceeded
under the theory that this Central Intelligence Agency was authorized
to collect this information and not simply to evaluate it?
General VANDENBERG. We went under the assumption that we should inform
the National Intelligence Authority, with the setting up of the Central Intelligence
Group, on an efficient basis, as was required from us from time to time to
advise, because we were the Advisory Board for the National Intelligence Authority;
and that part that says that we should "perform such other functions and
duties as the President and the National Intelligence Authority may from time to
time direct" and "recommend to the National Intelligence Authority the establishment
of such overall policies and objectives as will assure the most effective
accomplishment of the National Intelligence mission" gave us that right.
Mr. BROWN. Then, you did not consider that the word "evaluate" was a limitation
on your duty, but this other sectilJn was so broad that you could do about
anything that you decided was either advantageous or beneficial, in your mind?
General VANDENBERG. Yes, sir.
Mr. BROWN. In other words, if you decided you wanted to go into direct activities
of any nature, almost, Why, that would be done?
General VANDENBERG. Within the Foreign Intelligence field, if it was agreed
upon by all tlu! three agencies concerned.
Mr. BROWN. And that you were not limited to evaluation?
General VANDENBERG. That is right, sir.
(Transcript, House Committee on Expenditures in the Executive Department,
Hearings on H.R. 2319, 6/27/47, pp. 9--11.)
Walter Pforzheimer has told one interviewer that General Vandenberg testified
in the executive session about intelligence collection because Army Intelli·
gence opposed any intelligence gathering hy the CIA. Covert action, according to
Pforzheimer, was not mentioned. Interview on file at the Center for National
Security Studies.
In addition, as was noted earlier, there is no evidence that the Central Intelligence
Group did engage in covert action.
.. Rogovin, HSIC, 12/9/75, p. 1735.
r.:; Ibid.
.. Transcript,. House Committee on Expenditures in the Executive Departments,
Hearings on H.R. 2319, 6/27/47, p. 37.
57 Ibid., p. 37.
489
These statements and the discussions in the executive session about
the CIA's role in clandestine intelligence gathering suggest that the
ambiguous references in the public hearings referred to clandestine
collection operations.
Because the Select Committee has been unable to locate transcripts
of the other executive sessions, it is impossible to state conclusively
that covert action was not explicitly mentioned during these meetings.
However, none of the participants queried recalled any such discussions
and none of the committee reports contain any references to
covert action.
A memorandum by the CIA's General Counsel, written soon after
the passage of the Act, noted that "\Ve do not believe that there was
any thought in the minds of Congress that the Central Intelligence
Agency, under this authority, would take positive action for subversion
and sabotage." In that September 25,1941 memorandum to the Director,
the General Counsel wrote;
A review of debates indicates that Congress was primarily
interested in an agency for coordinating intelligence and
originally did not propose any overseas collection activities
for CIA. The strong move to provide specifically for such
collection overseas ,vas defeated, and, as a compromise, Sections
102 (d) (4) and (5) were enacted, which permitted the
National Security Council to determine the extent of the
collection work to be performed by CIA. We do not believe
that there was any thought in the minds of Congress that the
Central Intelligence Agency under this authority would take
positive action for subversion and sabotage. A bitter debate at
about the same time on the State Department's foreign broadcast
service tends to confirm our opinion. Further confirmation
is found in the brief and off-the-record hearings on appropriations
for CIA.... It is our conclusion, therefore, that
neither M.a. [morale operations] nor S.O. [special operations]
should be undertaken by CIA without previously informing
Congress and obtailllng its approval of the functions
and the expenditure of funds for those purposes.58
All of this is not to suggest that Congress (", any "lemLers or l'ongress
specifically intended that covert action should he excluded from
the authorized missions of the CIA. The issue of "OH'l't action simDl..
was not raised in the course of the legislation's enactment. ~\s i ':l
CIA's former General Counsel told the Senate Select Cc,DlIrittee.
there is "no specific legislative history supporting COH'rt action "
part of the functions assigned" to the CIA.59 Rather than authorizil1~'
covert action, the broad language of 102(d) (5) appears w 1m,',
68 Memorandum from the CIA General Counsel to the Director, 9/25/47.
This memo may have been the result of an inquiry by Admiral Hillenkoetter,
who had been asked by Secretary Forrestal if the CIA would be able to conduct
covert and cold war activities such as black propaganda and sabotage in support
of guerrilla warfare. Admiral Hillenkoetter, who had doubts about the CIA's
authority to undertake such activities, asked his General Counsel for his
opinion. (Houston, 6/17/75, p. 13-15.)
59 Houston, 6/17/75, p. 10.
207-932 0 - 76 - 32
490
been intended to authorize clandestine collection of intelligence 60 and
to provide the CIA with the "maximum flexibility" 61 necessary to deal
with problems which, due to America's inexperience with a peacetime
intelligence agency, might not be foreseen.
D. Post Enactment History
As previously noted, the executive branch presented no justification
to the Congress for the conduct of covert action by the CIA. Yet even
while the National Security Act of 1947 was being drafted, introduced,
debated, and passed the Coordinating Committee of the Departments
of State, War, and the Navy (SWNCC) prepared a paper establishing
procedures for psychological warfare during peacetime as well as wartime.
On April 30, 1947, SWNCC established a Subcommittee on
Psychological Warfare to plan and execute psychological war.
These plans took on new importance as the United States became
concerned over the course of events in vVestern Europe and the Near
East. Tension soon became so high that in December of 1947, the
Department of State advised the NSC that covert operations mounted
by the Soviet Union and her allies threatened the defeat of American
foreign policy objectives. The Department recommended that the
U.S. supplement its own foreign policy activity with covert
action.
At its first meeting in December, 1947, the National Security Council
approved NSC-4, which empowered the Secretary of State to
coordinate information activities designed to counter communism.
A top secret annex took cognizance of the "vicious psychological
efforts of the USSR, its satellite countries, and Communist groups to
discredit and defeat the activities of the U.S. and other Western
powers." The NSC determined that "in the interests of world peace
and U.S. national security the foreign information activities of the
U.S. government must be supplemented by covert psychological
operations."
The CIA was already engaged in clandestine collection of intelligence
and, as the NSC put it, "The similarity of operational methods
involved in covert psychological and intelligence activities and
the need to ensure their secrecy and obviate costly duplication renders
the CIA the logical agency to conduct such operations." Therefore,
acting under the authority of section 102 (d) (5) of the National Security
Act of 1947, the NSC instructed the Director of Central Intelligence
to initiate and conduct covert psychological operations that
would counteract Soviet and Soviet-inspired covert actions and which
would be consistent with U.S. foreign policy and overt foreign
information activities.62
In the following months the CIA was involved in a number of covert
actions. As the Soviet threat loomed larger and larger, the need for
covert action, beyond psvchological operations, seemed more pressing.
On June 18, 1948, the NSC issued NSC-10j2 which superseded NSC4-
A, and vastly expanded the range of covert activities. The CIA was
.. Memorandum from the CIA General CQunsel to the Director, 5/7/48.
01 Houston; 6/17/75, p. 10.
62 Pursuant to the NSC's instruction. the Special Procedures Group was established
in the Office of Special Operations (OSO) of the CIA to conduct covert
psychological operations.
491
authorized to undertake economic warfare, sabotage, subversion
against hostile states (including assistance to guerrilla and refugee
liberation groups), and support of indigenous anti-communist elements
in threatened countries.
The NSC noted that CIA was already charged with espionage and
counterespionag-e abroad.63 Because of this, according to the NSC, it
was "desirable" for "operational reasons" to assign covert action authority
to the CIA rather than to create a new unit. Therefore, under
the authority of 50 U.S.C 403 (d) (5), the NSC ordered the establishment
in CIA of the Office of Special Projects (aSp), to conduct covert
action. The Chief of asp was to receive policy guidance from the
Secretary of State and the Secretary of Defense. asp (later, OPC)
was to operate independently of all components of the CIA to the
maximum deg-ree consistent with efficiency.64
Thus even though the CIA's General Counsel could find no authority
in the legislative history of the National Security Act, the NSC
relied upon the Act to direct the CIA to initiate covert actions. Language
intended to authorize clandestine intelligence gathering and to
provide flexibility for unforeseen circumstances was broadened by
the executive to cover sabotage, subversion and paramilitary activities.
The executive branch did not heed the advice offered by the
CIA's General Counsel in 1947 that congressional authorization was
still "necessary." 65 This may well have been due to a belief in the power
of the President to direct such activities.66
It is impossible to prove conclusively that Congress intended or did
not intend to authorize covert action by the CIA through the passage
of the National Security Act of 1947. It is possible, however, after
reviewing the hearings, committee reports, and floor debates, to say that
there is no substantial evidence supporting the existence of Congressional
intent to authorize covert action by the CIA through the enactment
of the National Security Act.
This conclusion is supported by the following:
(1) The absence of any explicit provision in the Act itself.
(2) The absence of any reference to covert action in the
committee reports.
(3) The absence of any clear statement by a Member of
Congress, in the hearings or debates, which demonstrates
the intent to authorize covert action.
(4) The absence of any reference to a program of covert
action in t!he justifications and explanations by the executive
branch of the Act.
.. The CIA had also been charged with conducting covert psychological operations
under the authority of NSC 4-A.
.. Both NSG--4-A and NSC 10/2 cited 50 U.S.C. (d) (5) ; neither invoked the
President's authority, if any, to order covert action in the absence of congressional
authoriza,tion.
.. Memorandum from the CIA General Counsel to the Director. 9/25/47, p. 2.
.. The General Counsel of the CIA noted his belief that "if [the CIA got]
the proper directive from the executive branch and the funds from the Congress
to carry out that directive, 'these two together are the true authorization."
(Memorandum from the General Counsel of the CIA to the Director, 10/3D/69,
at p. 2.)
492
(5) The absence of any discussion in the hearings or debates
of the threats which would suggest the need for a
covert action capability.
(6) The conclusion of the CIA~s General Counsel~ immediately
following the Act~s passage, that the CIA lacked
statutory authority for covert action and that sections (d) (4)
and (5) were intended by Congress to authorize clandestine
intelligence gathering by the CIA.
B. THE CIA ACT OF 1949
Passage of the CIA Act of 1949 has also been cited as support for
the view that Congress has authorized covert action by the CIA. A
c~reful analysis of the Act's legislative history does not support this
VIew.
Two years after the enactment of the National Security Act and
after the NSC had directed the CIA to engage in various covert activities,
Congress passed the Central Intelligence Agency Act of 1949.68
The 1949 legislation was an enabling act containing administrative
provisions necessary for the conduct of the Agency's mission.69 As
such, it did not add to the missions of the Agency. The events surrounding
its passage~ however, may shed light upon what Congress
believed it had authorized in the National Security Act of 1947.
The Act included a number of administrative provisions which
clearly were designed to assure the security of some sort of clandestine
activity by the CIA. These included the waiver of normal restrictions
placed on governmental acquisition of materiel, hiring and, perhaps
more important, accounting for funds expended.. The General Counsel
of the Central Intelligence Agency wrote that:
Provision of unvouchered funds and the inviolatability of
such funds from outside inspection is the heart and soul of
covert operation.70
The Central Intelligence Agency has argued that passage of the
Central Intelligence Agency Act of 1949 "clearly reflects Congress'
determination that the Agency be able to conduct activities such as
covert action. similar to those conducted bv the OSS." 71 Although
members of the House Armed Services Committees were aware that
the Central Intelligence Agency was conducting covert operations and
that the administrative provisions would be "essential to the flexibility
68 50 U.S.C. 403a-403j.
.. The administrqtive pl'ovisiom; had been ineluded in 'a draft of the National
Security Act of 1947 shown to Members of the House of Representatives. In
order to avoid haVing to detail administrative provisions for aU of the organizations
set up under the National Security Act, these provisions were removed
from the draft to be presented later as a separate act.
70 Memorandum from the CIA General Counsel to the Director, 5/25/49, p. 2.
71 Rogovin, HSIC, 12/9/75, p. 1735.
493
and security" 72 of these operations, there is no evidence that Congress
as a whole knew the range of clandestine activities, including covert
action, which was being undertaken by the CIA. The commIttee reports
on the Central Intelligence Agency Act include no reference to
covert action. The floor debates contain only one reference to
covert action, and strongly suggest that the Congress knew only that
clandestine intelligence gathering was going on.
In addition, the provisions of the 1949 Act are not uniquely designed
to facilitate covert action. They would serve the needs of an organization
performing espionage equally well; Members of Congress, in fact,
described the Act as an "espionage bill." 73 Thus even a careful reader
of the Act would not infer from its provisions that the Agency was
conducting covert action.
Given these facts, it is difficult to find in the Act's passage congressional
intent to authorize covert action or a congressional belief that
the National Security Act of 1947 had authorized it.
The bill which was to become the Central Intelligence Agency Act
of 1949 was first introduced in Congress in 1948. The Director of Central
Intelligence appeared before the House Armed Services Committee
on April 8, 1948, to discuss the bill. The Director noted:
It was thought when we started back in 1946, that at least
we would have time to develop this mature service over a
period of years-after all, the British, who possess the finest
intelligence in the world, have been developing their system
since the time of Queen Elizabeth. Unfortunately, the international
situation has not allowed us the breathing space we
might have liked, and so, as 'we present this bill, we find our-
1. The CIA General Counsel described the provisions of the Central Intelligence
Agency Act of 1949 as follows:
"Administrative authorities of the Agency are contained in the Central Intelligence
Agency Act of 1949, as amended. This has provided us with all th'e
authorities and exemptions needed to carry out the wide variety of functions
assigned to the Agency during the past twenty years. It enables us to have an
effective and a flexible personnel program, ranging from the normal desk officer
in headquarters to persons in a relationship so remote that they do not know they
are working for the Agency. It enables us to exercise all the techniques required
for clandestine activities, from traditional agent operations through proprietary
and other more sophisticated types of machinery. It has enabled us to undertake
major unforeseen projects, such as the U-2 operation.
"Two provisions of the Act are particularly important. The unique authority
in Section 5 to transfer to and receive from other government agencies sums as
may be approved by the Bureau of the Budget. This has given us great flexibility
and security in our funding. The other, Section 8, with its wide authority for
utilization of sums made available to the Agency, particularly subsection (b)
thereof which allows us to make any 'expenditures required for confidential,
extraordinary. or emergency purposes, and these expenditures will be accounted
for solely on the certificate of the Director. This has been essential to the flexibility
and security of our covert activities." (Memorandum from the CIA General
Counsel to the Deputy Director for National Intelligence Programs Evaluation
10/9/68, p. 3.)
,. 95 Cong Rec. 1946 (1949).
494
selves in operations up to our necks, and we need the authorities
contained herein as a matter of urgency.74
It is clear that the operations that the Director referred to were
understood by the executive branch to include covert action. In describing
the provision of the bill which would eliminate the normal
government advertising requirements, the Director stated that there
were urgent requests from overseas which required immediate operational
response. As an example, he provided: "Any possible action in
connection with the Italian election." 75 In later remarks on the same
section,76 the Director cited the need to avoid advertising for contracts
for the production of certain materiel, listing among his examples
explosives and silencers.77 Such materiel was clearly not for the purposes
of clandestine intelligence gathering and reporting.
In his lOO-page statement, the Director also explained the provision
for unvouchered funds, the provision which the General Counsel of
the Central Intelligence Agency described as the "heart and soul of
covert operations." The Director stated:
In view of the nature of the work which must be conducted
by the CIA under the National Security Act and applicable
directives of the National Security Council, it is necessary to
use funds for various covert or semi-covert operations and
other purposes where it is either impossible to conform with
existing government procedures and regulations or conformance
therewith would materially injure the national security.
It is not practicable, and in some cases impossible, from either
a record or security viewpoint to maintain the information
and data which would be required under usual government
procedures and regulations. In many instances, it is necessary
to make specific payments or reimbursements on a project
basis where the background information is of such a sensitive
nature from a security viewpoint that only a general certificate,
signed by the Director of CIA, should be processed
through even restricted channels. To do otherwise would obviously
increase the possibilities of penetration with respect
to any specific activity or general project. The nature of the
activities of CIA are such that items of this nature are recurringand,
while in some instances the confidential or secret
aspects as such may not be of primary importance, the extraordinary
situations or the exigencies of the particular transaction
involved warrant the avoidance of all normal channels
and procedures.78
On the basis of this presentation, it can 'be concluded that at least
the House Armed Services Committee, one of the committees which had
jurisdiction over the CIA, knew that the CIA was conducting or would
in the future conduct covert action. The Committee also knew that
,. Statement of Adm. Roscoe Hillenkoetter, Director of Central Intelligence,
House Armed Services Committee, 4/8/48, pp. 6--7 (statement on file at the CIA).
76 Ibid., p. 21.
,. Sect. 3 (s) of H.R. 5871, 80th Cong., 2d Session.
77 Hillenkoetter, 4/8/48, p. 27. These examples were drawn by the Director from
the history of the OSS.
" Ibid. pp.11l-1l3.
495
the administrative prOVISIons would enhance the Agency's covert
action capability,79
The evidence, however, is not entirely clear. While the present day
reader may interpret "covert or semicovert operations" to mean covert
action, the Members had had little exposure to these terms. Covert
or semicovert operations could easily have been interpreted to mean
clandestine intelligence gathering operations; the CIA's role in clandestine
intelligence gathering had been discussed in a hearing before
the same committee,80 as well as in the press.8!
Even if it were assumed, moreover, that the House and Senate Armed
Services Committees fully understood that the CIA was engaging in
covert action, there is no evidence that the Congress as a whole knew
that the CIA was engaged in covert action or that the administrative
provisions were intended to facilitate it. The hearings on the CIA Act
of 1949 were held almost entirely in executive session. The committee
reports on the Act did not mention covert action at all. They were bland
and uninformative--the provision to provide the secret funding of the
CIA through transfers from appropriations to other government agencies
was described as providing "for the annual financing of Agency
operations without impairing security." 82 They were strikingly incomplete.
As the House Armed Services Committee report itself noted,
the report:
does not contain a full and detailed explanation of all of the
provisions of the proposed legislation in view of the fact that
much of such information is of a highly confidential nature.83
The floor debates contain only one indication that covert action, as
opposed to clandestine intelligence gathering, was being, or would be
undertaken by the CIA.84 The debates strongly suggest that rather
than approving covert action by the CIA, Congress was attempting
to facilitate clandestine intelligence gathering by the Agency.
Prior to the passage of the Act there had been discussion in the press
of CIA involvement in clandestine intelligence gathering. Clandestine
intelligence gathering was mentioned on the floor; as noted previously,
Members referred to the CIA Act of 1949 as an "espionag-e bill." 8.'>
Senator Tydings, the Chairman of the Senate Armed ServIces Committee,
stated, "The bill does not provide for new activity, but what
it does particularly is to seek to safeguard information procured by
,71 It is quite likely that the Senate Armed Services Committee was presented
with a similar statement from the Director, although the Senate Select Committee
has been unable to locate any transcripts of executive sessions held by the
Senate Armed Services Committee.
80 Testimony of Gen. Hoyt S. Vandenberg before House Armed Services Committee
Hearing on H.R. 5871, 4/8/48 (statement on file at the CIA).
81 "The Xat Bogata," The WMhington Post, 4/13/48; Hanson 'V. Baldwin,
"Intelligence----'II," The New York TiJmes, 7/22/48.
so S. Rep. No. 725, 81st Cong., 1st Sess. 4 (1949) .
.. H. Rep. No. 160, 9lst Cong., 1st Sess. 6 (1949). See also 95 Cong. Rec. 1946
(1949), remarks of Rep. Marcantonio.
.. It was remarked in the House debates, in the context of a discussion of intelligence
gathering that "in spite of all our wealth and power and might we have
been extremely weak in psychological warfare, notwithstanding the faet that
an idea is perhaps the most powerful weapon on this earth." (95 Congo Rec. 1047
(1949).)
.. 95 Congo Rec., 1946 (1949).
496
agents of the government so that it will not fall into the hands .of
enemy countries or potential enemy countries who would use the mformation
to discover who the agents were and kill them." 86 Thus
there is ample evidence to suggest that the full legislature knew that
the functions of the CIA included espionage; but there is no evidence
to suggest that more than a few Members of Congress knew that the
CIA was engaged in covert action. 'Without such knowledge Congress
could hardly be said to have authorized it.87
Another factor undercutting the theory that passage of the CIA
Act constituted congressional authorization for covert action is that
the argument confuses implementing authority with statutory authority.
Congress had set out the CIA's statutory authority in the National
Security Act of 1947. The CIA Act of 1949 did not provide any additional
non-administrative or non-fiscal powers to the CIA.88 It simply
provided the means for the CIA to implement the authorities already
granted it.
C. THE PROVISION OF FUNDS TO THE CIA BY CoNGRESS
There is no evidence that Congress intended, by the passage of the
National Security Act of 1947, to authorize covert action by the CIA.
Passage of the Central Intelligence Agency Act of 1949 did not add
the covert action mission to those already authorized by the National
Security Act. Nevertheless, the National Security Council had in 1947
directed the CIA to engage in cowrt activities; by the early 1950s the
Central Intelligence Agency was involved in covert action around the
world.
In 1962 the General Counsel summarized the early developments in
the CIA's undertaking of covert action: 91
The National Security Council did develop a Directive (NSC
10/2) setting forth a program of covert cold-war activities
and assigned it to the Office of Policy Coordination under
the Director of Central Intelligence with policy guidance
from the Department of State. The Congress was asked for
and did appropriate funds to support this program, although,
of course, only a small number of Congressmen in the Ap-
""95 Congo Hec. 6955 (1949). This quote, indicating Chairman Tydings' interpretation
of the Act, seems to undercut the argument that he and the Senate
Armed Services Committee understood that the CIA was conducting covert action
and that the provisions of the CIA Act of 1949 were designed to facilitate this.
87 Without such knowledge a Member reading the Act would not be likely to
infer that it was designed to facilitate covert action. As the provisions of the Act
were not uniquely designed for covert action but were equally applicable to
clandestine intelligence gathering. an activity which Congress knew about and
approved, Members would be unlikely to realize from reading the Act that the
CIA conducted covert action.
88 S. Rep. No. 106, 81st Cong., 1st Sess. 1 (1949).
91 In a September 25, 1947 memorandum to the Director. the General Counsel
advised that no covert action "should be undertaken by CIA without previously
informing Congress and obtaining its approval of the functions and expenditure
of funds for those purposes." He further noted that even if the NSC were to assign
the covert action function to the CIA it would still be necessary for the
CIA to "go to Congress for authority and funds." (Memorandum from the CIA
General Counsel to the Director, 9/25/47).
497
propriations Committees knew the amount and purpose of
the appropriations.92
The Office of Legislative Counsel of the Department of Justice
argued in 1962 that this provision of funds for covert action, even
though known only to a few members of Congress, constituted congressional
ratification of the CIA's conduct of covert action.
Congress has continued over the years since 1947 to appropriate
funds for the conduct of such covert activities. We
understand that the existence of such covert activities has
been reported on a number of occasions to the leadership of
both houses, and to members of the subcommittees of the
Armed Services and Appropriations Committees of both
houses. It can be said that Congress as a whole knows that
money is appropriated to CIA and knows generally that a
portion of it goes for clandestine activities, although knowledge
of specific activities is restricted to the group specified
above and occasional other members of Congress briefed for
specific purposes. In effect, therefore, CIA has for many years
had general funds approval from the Congress to carry on
covert cold-war activities, which the Executive Branch has
the authority and responsibility to direct.
It is well-established that appropriations for administrative
action of which Congress has been informed amount to a ratification
of or acquiescence in such action. Brooks v. Dewar, 313
U.S. 354, 361; Fleming v. Mohawk 00.,331 U.S. 111,116; see
also Ivanhoe I rrig. Dist. v. jJ[cOracken, 357 U.S. 275,293-294;
Power Reactor 00. v. Electricians, 367 U.S. 396, 409. Since
the circumstances effectively prevent the Congress from making
an express and detailed appropriation for the activities of
the CIA, the general knowledge of the Congress, and specific
knowledge of responsible committee members, outlined above,
are sufficient to render this principle applicable. [Citations
omitted.] 93
And in December 1975 the House Select Committee on Intelligence
was told by the CIA that given "CIA reporting of its covert
action programs to Congress, and congressional appropriation of funds
for such programs" the "law is clear that, under these circumstances.
"'Memorandum from the CIA General Counsel to the Director, 1/15/62, p. 2.
• 3 Memorandum re: "Constitutional and Legal Basis for So-Called Covert Activities
of the Central Intelligence Agency," prepared by the Office of Legislative
Oounsel, Department of Justice, 1/11/62, pp. 12-13.
The Office of Legislative Counsel apparently placed considerable weight on
the knowledge of the subcommittee members of the committees having jurisdiction
over the CIA (Ibid., p. 12 n. 4) and implied "close contact" between the
CIA and "its committees," (lbul., p. 13 n. 5) For example, the memorandum cited
a letter dated May 2, 1957, from "fr. Allen W. Dulles, Director, CIA, to Sen.
Hennings, in Freedom of Infor'TIWtion and Secrecy in Gorernment, Hearing before
the Subcommittee on Constitutional Rights of the Senate Committee of the
.JUdiciary, 85th Cong., 2d Sess., pp. 376, 377:
"'rhe Director of the Central Intelligence Agency appears regularly before
e>;tablished .subcommittees of the Armed Services and Appropriations Committees
of the Senate and of the House, and makes available to these subcommittees
complete information on Agency activities, personnel and expenditures. No
information has ever been denied to their subcommittees."
498
Congress has effectively ratified the authority of the CIA to plan and
conduct covert action under the direction of the President and the
National Security Council." 95
In order to analyze the claim that congressional provision of funds
to the CIA constitutes congressional ratification of the CIA's authority
to conduct covert action, the general question of congressional ratification
by appropriation must be examined. The general rule has been
stated as follows: "Ratification by appropriation is not favored and
will not be accepted where prior knowledge of the specific disputed
action cannot be demonstrated clearly."96 In the same opinion the Court
noted that:
ratification by appropriation, no less than ratification by
acquiescence, requires affirmative evidence that Congress
actually knew of the administrative policy.... Moreover,
to constitute ratification, an appropriation must plainly show
a purpose to bestow the precise authority which is claimed."
[Citations omitted.]
Appropriations do not convey authority or ratify agency acts without
proof that Congress knew what the agency was doing. For instance,
in Green v. McElroy, 360 U.S. 474, the Supreme Court held
that an appropriation to the Department of Defense for its security
program did not constitute ratification of a procedure which denied
the right of an individual to confront the witnesses against him.
On the other hand, if appropriations are enacted after objections
have been made to the appropriations committees that no legal authority
exists to carry out a particular project, congressional acknowledgement
or ratification of the authority to perfonn the specified act can
be inferred.97
In sum, general appropriations for an agency cannot be deemed to
be ratification of a specific activity of that agency in the absence of
congressional knowledge of the specific activity and congressional
intent that the specific activity be funded from the general
appropriation.98
The argument that through the provision of funds to the CIA
Congress has effectively ratified the authority of the CIA to conduct
covert action rests on the assumption that since the founding of the
Agency, Congress has known that CIA was engaged in covert action
and has provided funds to the CIA with the knowledge and intent that
some of the funds would be used for covert action.
The CIA's conduct of covert action was not known by Congress as a
whole during the early years of the CIA. In the interest of security,
few Members were informed about covert actions-a situation which
"' Rogovin, HSIC,12j9j75, p.1736.
.. D.O. Federation of Oivic Associatioml v. Airis, 391 F.2d 478, 482 (D.C. Circ.
1968).
07 United States ex rel Tennessee Valley Authority v. Two Tracts of Land,
456 F.2d 264 (6th Cir. 1972). Appropriations for the Vietnam War, in combination
with other congressional actions, were held by most courts to constitute congressional
authorization for the war. See e.g., Berk v. Laird, 317 F. Supp. 715 (E.D.
N.Y. 1970). But see, Mitchell v. Laird. 488 F. 2d 611 (D.C. Cir. 1973).
9. Thompson v. Clifford, 408 F.2d 154 (D.C. Cir. 1968) ; Sutherland, Statutory
Construction (Sands ed. 1974) sec. 49.10.
499
continued until Congress mandated disclosure to six congressional
committees of CIA activities not intended solely for intelligence gath·
ering.99 Even prior to this mandate, many Members of Congress not
briefed on covert action by the executive branch probably knew that
the CIA had engaged in covert actions such as the Bay of Pigs; this
knowledge was not official being based neither on declarations of official
U.S. policy nor on briefings of the Congress as a whole, but rather
on information gained from other sources.loo One of the reasons
offered for the 1974 Amendment to the Foreign Assistance Act waf>
that it would ensure that Congress would have sufficient information
about covert action to determine if such activities should continue.lal
It is difficult to fix a point in time in the past when it could be
said with assurance that Congress as a whole "clearly" had the knowledge
of covert action required for congressional ratification.lo2 Congress
certainly has that knowledge today.
The first requirement, congressional knowledge of covert action by
the CIA, is, at least now, met. In the future appropriation to the CIA
without any provision prohibiting the use of funds for covert action
would ratify the CIA's authority. But did the provision of funds
to the CIA in the past, or will the provision of funds in the future
under present arrangements constitute "appropriations" which
"plainly show a purpose to bestow the precise authority which is
claimed"?
The answer would be a clear yes if the funding had been or were to
be by open appropriations to the CIA. The answer would be yes if
Cong-ress as a whole had voted the appropriations to the CIA in
executive session. This has not been the case.
The funds provided to the CIA are concealed in appropriations
made to other agencies. They are then transferred to the CIA, pursuant
to the provisions of the CIA Act of 1949/03 with the approval of
.. 22 U.S.C. 2422.
100 Under the system of plausible denial the U.S. Government would not officially
confirm that it engaged in covert action and would seek to avoid acknowledging
a U.S. Government role in any particular covert action. Therefore, the
knowledge imputed to Members of Congress not officially briefed on the CIA's
covert actions would have to be based on other sources.
101 Congo Rec., Sl8065, daily ed., 10/2/74 (remarks of Senators Baker and
~ymington).
102 It might be argued that Congress chose to limit knowledge of covert action to
selected Members and that their knowledge, combined with that congressional
decision, would be sufficient. J. Edwin Dietel, of the Office of General Counsel of
the CIA, in a 11/20/73 memorandum for the record, in fact wrote: "We would
also note that, while the specific activities that the Agency's appropriations are
used for is limited to only a few Members of Congress, the whole Congress chose
to adopt that procedure for reviewing the Agency's activities and appropriations."
First, it must be noted that until Congress "knew" about covert action, Congress
could not delegate to a small group of Members the responsibility for overseeing
it. When Congress reached that point of knowledge-and as noted it is
impossible to say whpn that was-it arguably could delegate although there
may be limits to that delegation.
Given the presumption against ratification by appropriation, the difficulty
in fi'xing a time when Congress "knew," as well 'as the small number of knowledgeable
Members, and the question of whether Congress could delegate to these
Members the congressional knowledge required for ratification, it cannot be
concluded that the knowledge of these few Members met the test cited for
ratification by appropriation.
108 50 U.S.C. 403 f.
500
the OMB and selected members of the Appropriations Committee.
Congress, as a whole, never specifically votes on funds for the CIA.
Congress, as a whole, does not know how much money the CIA will
receive in a given yel1r. 104 This secret funding undercuts the argument
that the Congress has notified the CIA's conduct of covert action by
knowingly appropriating funds to be used for covert action. In fact,
there is some doubt that the CIA is even "appropriated" funds pursuant
to the constitutional requireemnt.103
Even if the provision of funds is constitutionally valid, in the absence
of a vote by Congress on the funding, it can hardly be said to
"plainly" demonstrate a congressional intent to ratify the CIA's authority
to conduct covert action.
The CIA ignored the questionable nature of Congress' knowledge of
covert action 'and the secret funding of the CIA in daiming that "the
law is clear that, under these circumstances, Congress has effectively
ratified the authority of the CIA to plan and conduct covert action
under the direction of the President and the National Security Council."
106 In support of its position, the Central Intelligence Agency
cited what was described as "the leading case on this point," Brooks
v. Dewar, 313 U.S. 354 (1941). According to the Central Intelligence
Agency, "the Brooks case requires the conclusion that Congress has
ratified the CIA's authority to plan and conduct covert action." 101
Brooks involved a challenge to a licensing scheme established by
the Secretary of the Interior under a statute providing him with
broad responsibility for the administration of livestock grazing districts.
Although the act in question did not explicitly authorize him to
require persons wishing to utilize the land to purchase licenses, the
Court found congressional ratification of his actions. The Court, in upholding
the Secretary's argument that Congress had ratified his action
wrote,"The information in the possession of Congress was plentiful
and from various sources." 108 The Court cited annual reports of the
10< For a fuller discussion of the funding of the CIA, see Chap. XVI, p. 367.
106 Article I, Sec. 9, Clause 7 of the Constitution provides that "No Money shall
be drawn from the Treasury but in Consequence of Appropriations made by Law."
Appropriations are, by definition, specific amounts of money set aside for designated
purposes [Geddes v. United States, 39 Ct. Claims, 428. 444 (1903)] It is
not required to particularize each item in order for an appropriation to be valid
[United States v. State Bridge Commission, 109 F. Supp. 690 (E. D. Mich. 1953) J
but the appropriation must be sufficiently identifiable to make clear the intent of
Congress. [Ibid.] As Congress votes on appropriations for other agencies from
which CIA funds are secretly transferred rather than setting aside a specific
sum of money for the CIA for a specific purpose, it can be argued that there
is no constitutionally valid appropriation to the Agency. If the public accounting
required 'by Article 1, Sec. 9, Clause 7 is a necessary condition for a constitutionally
valid appropriation, it would be even harder to argue the validity of
the present funding scheme as the statement published pursuant to the constitutional
requirements do not refiect receipts and expenditures of the CIA.
The argument might be made that congressional establishment of the transfer
provisions of the CIA Act of 19<19 manifested a congressional purpose to authorize
the CIA to conduct covert action. However, nothing in the debates supports this
argument. Moreover, the transfer provision was equally applicable to any clandestine
activity, including the clandestine collection of intelligence.
100 Rogovin, HSIC, Hearings, 12/9/75, p. 1736.
'''' Ibid.
••• 313 U.S. '3t 360.
501
Secretary, testimony at Appropriation Committee hearings, land stJatements
on the floor of Congress. The Court found that the "repeat~
d appropriations of the fees thus covered and to be covered
into the Treasury ... constitutes a ratification of the action..." 109
Given the special treatment of the CIA, the relevance of Brooks
seems Questionable. "Plentiful" information is not available. No annual
reports are issued by the Director of Central Intelligence. Until
recently there have 'been few open hearings or floor debates on the
activities of the CIA. Congress as a whole has never voted on appropriations
for the CIA, nor designated funds for covert action.
Brooks and several other cases are 'also cited by a Justice Department
memorandum written in 1962 and presented to the House Select
Committee on Intelligence in 1975. The memorandum argues that:
Sinc,e the circumstJances effectively prevent the Congress from
making an express and detailed appropriation for the activities
of the CIA, the general knowledge of the Congress, and
specific knowledge of responsible committee members ... are
sufficient to render this principal [ratification] applicableyo
Given the presumption against mtification by appropriation, the
small number of knowledgeable Members, the uncertainty as to
whmher congressional knowledge required for ratification could be
imputed from the knowledge of these few Members, and the question
of whether a congressiOll'a1 'appropriation can be imputed from the
approval of secret transfers of funds to the CIA by subcommittees
of the House and Senate Appropriations Committees, there is substantial
doubt as to the validity of this position.
As was previously noted, the actual state of congressional knowledge
!about covert action prior to the 1970s is unclear. Congress, however,
now knows that the CIA conducts covert action. Congress also
knows that the Executive claims Congress has authorized the Agency
to do SO.111 Finally, Congress knows that the CIA receives its funds
through secret transfers of funds appropriated to the Depa-rtment of
Defense 112 and that some of the transferred funds are used to finance
cover action. In the future the failure by Congress to prohibit funds
from being used for covert action by the CIA would clearly constitute
congressional ratification of the CIA's authority, eliminating any
am'biguity.ll3
100 Ibid.
uo Rogovin, HSlC, 12/9/75, p.1736.
1U Congressional acquiescence, with notice, of long-standing executive policy,
creates a presumption in favor of that policy's validity (United States v. Midwellt
Oil 00., 236 U.S. 459 (1915). See also, SibMh V. Wil80n d: 00., 312 U.S.
1 (941).]
W Congo Rec., H9R59-76, daily ed., 10/1/75.
113 Congress clearly has the authority to attach conditions to the use of the
funds appropriated by it. [Ohio v. United State8 Oivil Service 00mmis8ion, 65
F. Supp. 776 (S.D. Ohio 19'16) ; Spalding v. Douglas Aircraft Co., 60 F. SUW.
985,988 (1945) atfd, 154 F. 2d 419 (9th Cir. 1946).]
502
Such ratification, however, like ratification by acquiescense,1l4 would
would still be disfavored.l15 As the Supreme Court has cautioned,
"it is at best treacherous to find in congressional silence alone the
adopting of a controlling rule of law." 116 It would seem that important
activities of the United States Government deserve direct and specific
authorization from Congress.
D. THE HOLTZMAN AND ABoUREZK AMENDMENT OF 1974
In 1974 Congress directly addressed the issue of the Central Intelligence
Agency's conduct of covert action. In September, the House of
Representatives defeated an amendment which would have forbidden
the Central Intelligence Agency to spend funds "for the purpose of
undermining or destabilizing the government of any foreign country."
In October, the Senate defeated an amendment to the Foreign
Assistance Act of 1974, which would have forbidden any agency of
the United States Government to carry out "any activity within any
foreign country which violates or is intended to encourage the violation
of, the laws of the United States or of such countries," except
for activities "necessary" to the security of the United States and
intended "solely" to g-ather intelligence..
While both amendments would have limited the ability of the Central
Intelligence Agency to conduct covert action, the failure of Congress
to adopt them does not clearly constitute congressional ratification
of the CIA's authority to conduct covert action.ll7 Neither dealt
with covert action in general. Strong opposition to even their consideration
prior to hearings and committee reports was voiced. The
amendments, however, did signal an increasing congressional concern
over covert action and marked the beginning of attempts by Congress
as a whole to regulate and obtain information on covert action.
In September 1974, Representative Holtzman proposed a joint
resolution which would have amended the Supplemental Defense Appropriations
Act as follows:
After September 30, 1974, none of the funds appropriated
under this joint resolution may be expended by the Central
Intelligence Agency for the purpose of undermining or destabilizing
the government of any foreign country.
11< The theory that congressional acquiescence constitutes ratification that
can be easily stretched. J. Edwin Dietel, Assitant General Counsel of the AgencY,
wrote a memorandum for the record dated May 7, 1974. In it he described a
question submitted by Senator Proxmire to Director Colby during Mr. Colby's
nomination hearing which concerned the Agency's secret financing of political
parties. Mr. Dietel wrote that in a classified response Mr. Colby stated that the
CIA has, over the last twenty-five years of its existence, provided secret financial
assistance to political parties in a number of foreign countries. "As there have
been no reverberations from this statement, there is, at least, tacit approval
for this type of activity."
116 Thoma.~ v. Clifford, 408 F. 2d 134, 166, (D.C. Cir. 1968). See also, Norman
Dorsen testimony, House Select Intelligence Committee, Hearings, 12/9/75 p.
1741. '
118 Girouard v. United States, 328 D.W. 61, 69 (1946).
117 For a contrary view See Rogovin, HSIC, 12/9/75, pp. 1736-1737.
503
Ms. Holtzman introduced the amendment in response b revelations
about the efforts of the CIA to "destabilize and undermine the government
in Chile" and 'as a "beginning" in "restoring congressional prerogatives
over the activities of the Government of this country." 118
Ms. Holtzman stressed her opposition to such activities directed against
foreign governments with whom the United States was not at war
"especially in an atmosphere of virtually complete secrecy, without approval
by the Congress, or approval by the people of this country." 119
The amendment was supported by Representative Giaimo, who
noted:
Since we have been informed of the improper activities of the
CIA in Chile, and perhaps in other countries-and we have
certainly been informed of its wrongful activities in Chilethis
is the first opportunity which we have had in Congress to
voice either approval or disapproval of the actions of our
Government as they relate to the CIA. This is the first bill before
us which presents us that opportunity. It is too late for
us as a practical matter to do anything in the defense appropriation
bill, but it is not too late now for us to approve this
amendment, and to show to the world that the U.S. Congress /
will not sanction these nefarious and covert activities of the
CIA, that the people of the United States will not approve
and ratify the improper and wrongful acts of the CIA in
Chile." 120
The amendment was opposed by Representative Mahon who argued
that the bill was "irrelevant" because the defense appropriation bill
would be signed into law within a few days.l21 and because the legislation
contained no proposal to undermine or destabilize any government.
122 He described as "indefensible" the presentation of the amendment
as there had not been sufficient hearing by any of the committees
of the House.123 He was joined in his opposition by Representative
Cederberg, a member of one of the CIA oversight subcommittees in the
House, who indicated his belief that U.S. activities in Chile were taken
"in the best interest of the United States," 124 and by Representative
Conlan who argued that the amendment would lead to the identification
of all our intelligence agents throughout the world and the destruction
of the "basic defenses" of the United States. A vote for the
amendment. Representative Conlan cautioned, would "cut off our
covert intelligence operations" and "would be a vote for national
suicide." 125
The proposal was defeated by the House of Representatives on
September 30, 1974, by a vote of 291-108.
Given this debate the defeat of the amendment cannot be read as
congressional ratification of the CIA's authority to conduct covert ac-
1]8 Congo nee. H9492-9493, daily ed., 9/24/74. (remarks of Rep. Holtzman).
119 Congo Rec. H9492, daily ed., 9/24/74.
uo Ibid., p. H9493 (remarks of Rep. Giaimo).
121 Ibid., (Remarks of Rep. Mahon).
UI Ibid.
Ull Ibid.
- Ibid., p. H9494 (remarks of Mr. Cederberg).
UI5 Ibid., (remarks of Rep. Conlan).
504
tion. The absence of hearings, the possible "irrelevance" of the amendment
noted by both supporters and opponents of the bill, and the fact
that the amendment only dealt with activities the purpose of which
was the "undermining or destabilizing the government of any foreign
country," all undercut an expansive reading of Congress' failure to
adopt it.
On October 2. 1974 Senator Abourezk introduced an amendment
(#1922) to the Foreign Assistance Act of 1974 which read as follows:
Illegal activities in foreign countries, -(a) no funds made
available under this or any other law may be used by any
agency of the United States Government to carry out any activity
within any foreign country which violates or is intended
to encourage the violation of, the laws of the United
States or of such countries.
(b) The provision of this section should not be construed
to prohibit the use of such funds to carry out any activity necessary
to the security of the United States which is intended
solely to gather intelligence information.
The amendment triggered a more extended floor debate than that
generated by the Holtzman amendment.126 During the debate Senator
Abourezk asserted that his amendment would "abolish all clandestine
or covert operations by the Central Intelligence Agency." 127 He argued
that even the Director of the CIA had indicated that the national
security would not be endangered if covert action were abolished.128
Some of the opponents of the amendment argued that improved congressional
oversight would be preferable to banning covert action.
Senator Church noted that he could envision situations where threats
to the national security would require covert activities.129
The amendment failed of passage. It might be argued that this failure,
like that of the Holtzman amendment, constituted congressional
ratification for the CIA's conduct of covert action.
The logic of this is undercut by a number of factors. One is that
the amendment was not directed to all covert action, although the
comments of some of the members implied ,that it was.130 It was directed
to activity abroad "which violates or is intended to encourage
the violation of, laws of the United States or of such country." Thus,
if failure to pass the amendment is to be read as congressional ratification
of the actions which the amendment sought to prohibit, the
Congress would have ratified only those foreign activities by the CIA
which are illegal or intended to encourage the violation of law.
= See Congo Rec. Sl8051-18056, daily ed., 10/2/74.
lZT Ibid., p. 18051 (remarks of Sen. Abourezk).
128 Ibid.
Ull Ibid., (remarks of Sen. Chureh).
100 Senator Abourezk stated that the amendment would "abolish all clandestine
or covert operations," while Senator Church argued that increased oversill:ht
would be better than a complete prohibition. On the other band, Senator Hatfield
opposed the amendment as it did not go far enough in merely prohihiting tbe
use of funds to carry out illegal foreigu covert action; be argued tbat tbe
capacity for any covert action should be taken away from the CIA. Senator
Metzenbaum 'argued for the amendment's passage precisely because it was aimed
only at illegal activities abroad by tbe CIA.
505
Whether the amendment passed or failed, it left unchanged whatever
authority, if any, the CIA then had to conduct covert actions abroad
which were illegal neither at home nor overseas.
Finally, the question of whether the amendment's failure should
be read as congressional ratification of the CIA's authority to conduct
such activities as would have been banned must be viewed in the
light of other, and telling, arguments raised by those opposed to the
amendment. Several Senators including Senators Humphrey, Stennis,
and Goldwater objected to the fact that the amendment had not
had the benefit of analysis by the committees with proper jurisdiction.
Without the benefit of consideration by the Armed Services Committee,
the amendment would be, according to Senator Stennis, "a shot
in the dark." 131
Using a different argument in opposition, Senator Baker stated
that there existed "an insufficient state of information" by which
to judge whether covert operations were or were not properly conducted.
In place of the amendment he suggested that a proposed joint
committee on intelligence oversight be established; Congress could
then be supplied with sufficient information on covert action to make
a judgment as to whether it should be banned or controlled by some
other device.132
Given the fact that the amendment would prohibit only those foreign
activities by the CIA which were illegal, the lack of explicit
authorization for the CIA to conduct any covert action, the opposition
of a substantial number of Senators to the amendment's consideration
before it was examined by the committees with appropriate jurisdiction,
and the statements by certain Senators that not enough was
known about covert action to take a position on its continuance, the
amendment's failure can hardly be g-iven much weight in determining
whether Congress has ratified the CIA's authority to conduct covert
action.
E. THE HUGHES-RYAN AMENDMENT
In 1974 Congress passed a significant amendment to the Foreign
Assistance Act. The amendment provided that no funds might be expended
by the CIA for operations not intended solely for obtaining
necessary intelligence, in the absence of a Presidential finding that the
operation is important to the national security of the United States,
and a timely report to the appropriate committees of the Congress.
The amendment does not specifically authorize covert action by
the CIA or unambig-uously demonstrate congressional intent to provide
such authorization. It does provide support for the position
that Cong-ress has authorized the CIA to conduct covert action or,
more specifically, activities that are not intended solely for intelligence
gathering. The debates indicate, however, a desire on the part
of some Senators to withhold a decision on whether to authorize
covert action until the reporting requirement provided Congress with
more information.
m See Congo Rec. S-18052, daily ed., 10/2/74 (remarks of Sen. Stennis).
132 Ibid., p. S18065 (remarks of Sen. Baker).
207-932 0 - 76 - 33
506
In December 1974, the Congress passed a set of amendments
to the Foreign Assistance Act. The amendments provided inter alia:
Limitations on intelligence activities-(a) no funds appropriated
under authority of this or any other Act may be expended
by or on behalf of the Central Intelligence Agency for
operations in foreiWl 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 Unit~d States and reports, in a
timely fashion, a description and scope of such operation to
the appropriate committees of 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 (b) the provisions of subsection (a) of
this section shall not apply during militarv operations initiated
by the United States under a declaration of war approved
by the Congress or an exercise of powers by the President
under the War Powers Resolution.133
The statute does not explicitly authorize covert action by the Central
Intelligence Agency. On its face it leaves the question of congressional
authorization for covert action by the Central Intelligence
Agency in the same position as existed prior to its passage, with two
exceptions:
(1) For the first time a statute passed by Congress and signed by the
President acknowledges that the Central Intelligence Agency might,
in fact, conduct operations which were not intended solely for intellig-
ence-p-athering purposes; and
(2) The statute required that if such operations were to be carried
out the President must first find that they are important to the national
security of the United States. If such a finding is made, the
operations must then be reported in a "timely fashion" to the appropriate
committees of Congress.134
The amendment does not on its face provide any new authority
for the President or the CIA. Nowhere in the public record is there
any sug-gestion that the amendment might, in itself, serve as a new
delegation by Congress of authority to the President to order any
action by the CIA. If the amendment were read as a new delegation
of powers to the President, the delegation would cover an enormously
wide range of activities-all those activities not intended solely for
intelligence gathering.1s5
While there is no evidence in the public record that Congress intended
to delegate new powers to the President or the CIA, it might
,.. Appendix D, Hearings, Vol. 7, p. 230.
W There is some question as to the meaning of a "timely fashion." It is not
clear whether it means prior to, at the same time as, or within a reasonable time
after, the initiation of such an operation. The Central IntelUgence Agency has.
on occasion, notified the appropriate congressional committees before initiation
of a project. The Senate Select Committee has recommended that the
appropriate congressional committees be notified prior to the initiation of any
silmificant covert action projects.
135 This would be limited, to some extent, by the requirement of a presidential
finding.
507
be argued that passage of the amendment constitutes congressional
acknowledgment that the CIA did have authority to conduct those
covert actions consonant with the Presidential finding. The CIA has,
in fact, taken the position that passage of the amendment "clearly
implies that the CIA is authorized to plan and conduct covert
action." 136 Two committees of the Association of the Bar of the City of
New York concluded that passage of the amendment serves as a "clear
congressional authorization for the CIA to conduct covert activities."
137 This argument has considerable merit.
While certain restrictions were placed on the conduct of covert
action, it was not prohibited as it might have been. The amendment
was described in the floor debates as permitting the CIA to engage
in many activities and "authorizing" even covert activities such as
those designed to "subvert or undermine foreign governments." 138
Congressional ratification or authorization, however, as demonstrated
by the floor debates, was ha,rdly unambiguous. A substantial
number of the proponents of the amendment saw it as a temporary
measure. As Senator Hughes, its sponsor, stated:
. . . the amendment I offer should be regarded as only a
beginning toward the imperative of imposing some order and
structure to the means by which the American people, through
their elected representatives, can exercise a measure of control
over the cloak-and-dagger operations of the intelligence
agencies of the U.S. government.139
He went on to say that the amendment "provides a temporary arrangement,
not a permanent one, recognizing that a permanent
arrangement is in the process of being developed." 140
The development of this "permanent arrangement" depended on
the effectiveness of the reporting requirement. Senator Baker, who
had opposed the Abourezk amendment because there existed "an
insufficient state of information" by which to judge covert operations,
and Senator Symington both described the Hughes amendment as an
important step in providing Congress with much-needed information
about the activities of the intelligence agencies.141 Thus the amendment
might be seen not as congressional authorization for the CIA to
conduct covert action but as a temporary measure placing limits on
what the CIA would do anyway, while at the same time requiring
reporting to Congress so that Congress as a whole, traditIOnally
deprived of knowledge about covert action, could determine what
action to take with respect to this activity.142
'16 Rogovin, HSIC. 12/9/75, p. 1737.
'31 "The Central Intelligence Agency: Oversight and Accountability," prepared
-by the Committee on Civil Rights and the Committee on International Human
Relations, of the Association of the Bar of the City of New York (1975) p. 15.
,ao Congo Ree. H11627. daily ed., 12/11/74. (reIilllrks of Rep. Holtzman.)
'39 Cong. Rec., S18062, daily ed., 10/2/74. (remarks of Sen. Hughes.)
,.. Ibid.
'41 Ibid., p. S18065 (remarks of ,Sen. Baker and Sen. Symington).
1.. There is no evidence to support the view that Congress intended the amendment
to serve as a post hoc ratification for all previous CIA activities not intended
solely for intelligence gathering.
508
Proponents of this interpretation of the amendment can argue that
a mbitSUre designed to gather information about an activity cannot be
construed as congressional ratification of tha:t activity. If it were, Congress
would be powerless to seek regular reports about a controversial
subject on which it had been ill-informed without such action being
cited as congressional ratification for the subject of the reports.
The amendment did nat directly address the question of congressional
authorization for the CIA to conduct covert action. Its passage
did not unambiguously demonstrate a congressional intent to authorize
covert action. However, its passage supports the position that Congress
has either provided the CIA with implied authority or ratified
whatever authority the CIA possessed.
Congress clearly could have eliminated covert action. It chose, instead,
to place certain limits on the CIA and to require reporting on
covert actions to Congress. The reports to Congress should facilitate
an informed legislative response to the issues raised by covert action.
They also have the effect of preventing Congress from plausibly denying
its own knowledge of covert action by the United States if questions
of congressional authorization of covert action arise in the future.
Given the passage of the amendment and subsequent developments,
particularly the hearings and reports of the House Select Commititee
on Intelligence, and the Senate Select Committee on Intelligence, ther3
is little doubt that Congress is now on notice that the CIA claims to
have the authority to conduct, and does engage in, covert action. Given
that knowledge, congressional failure to prohibit covert action in the
future can be interpreted as congressional authorization for it.
F. CONCLUSION
There is no explicit statutory authority for the CIA to conduct
covert action. There is no substantial evidence that Congress intended
by the passage of the National Security Act of 1947 to authorize covert
action by the CIA or that Congress even anticipated that the CIA
would engage in such activities. The legislative history of the CIA Act
of 1949 similarly provides no indication of congressional intent to
authorize covert action by the CIA.
The 1974 Amendment to the Foreign Assistance Act recognizes
that the CIA does engage in activities other than those solely for the
purpose of intelligence-gathering, i.e. covert action. Enacted following
disclosures of CIA covert action in Chile, the amendment does provide
support to the argument that Congress has authorized covert action
by the Agency or has ratified the Agency's authority. (One of the
purposes of the amendment, however, was to assure Congress the information
about covert action necessary to decide what to do about it.)
Additional support for the argument that Congress has ratified the
CIA's authority to conduct covert action would be provided by the
continuing provision of funds to the CIA when it is clear that such
funds will be used, in part, for covert action. Some support for the
position may also be found in the continuing acquiscence of Congress
in the executive branch's claim that court action has congressional authorization.
While neither ratification by appropriation nor ratification
by acquiescence are favored by the courts, they cannot be disre509
garded. In the past such claims were weak. A few individual members
of Congress were kept informed about covert action but there were
doubts about the knowledge of Congress as a whole. The claims are
now more powerful because of the notoriety of the executive branch's
claim of authorization by Congress and because Congress, in part due
to the reports required since 1974 and House and Senate investigations,
can no longer claim ignorance of covert action.
Given the present state of congressional knowledge any remaining
ambiguity will be resolved-whether Congress acts directly or not.
Views of the inherent power of the President and the rightful role
for Congress in the formulation, initiation, and review of U.S. actions
abroad have changed since the establishment of the CIA and the enactment
of the National Security Act in 1947. These changes are reflected
in such legislation as the 1974 amendment to the Foreign
Assistance Act. 'Vhatever role evolves for the Congress in the
future it must now take responsibility for the CIA's conduct of covert
action, and for its results.

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