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III. THE COXSTITUTIOXAL FRA~IE,YORK FOR INTELLIGENCE ACTIVITIES A. THE JOINT RESPONSIBILITIES OF THE LEGISLATIVE AND EXECUTIVE BRANCHES-SEPAIL\TION OF POWERS AND CHECKS AND BALANCES 'While the Constitution contains no provisions expressly allocating authority for intelligence activity, the Constitution's provisions regarding foreign affairs and national defense are directly relevant. From the 'beginning, U.S. foreign intelligence activity 1 has been conducted in connection with our foreign relations and national defense. In these areas, as in all aspects of our Government, the Constitution provides for a system of checks and balances under the separation of powers doctrine. In foreign affairs and national defense, Congress and the President \vere both given important powers. The Constitution, as Madison explained in The Federalist, established "a partial mixture of powers." 2 Unless the branches of government, Madison said, "be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be maintained." 3 The framers' underlying purpose, as Justice Brandeis pointed out, was "to preclude the exercise of arbitrary power." 4 This pattern of checks and balances is reflected in the constitutional provisions with respect to foreign affairs and national defense. In foreign affairs, the President has the power to make treaties and to appoint Ambassadors and envoys, but this power is subject to the "advice and consenf' of the Senate." ,Vhile the President has the exclusive power to receive ambassadors from foreign states,· the Congress has important powers of its own in foreign afl'airs, most notably the power to regulate foreign commerce and to lay duties. 7 ~ A definition of the term "foreign intelligence activity" is necessary in order to properly assess the constitutional aspects of foreign intelligence activity, Foreign intelligence activity is now understood to include secret information gathering and covert action. Covert action is defined by the CIA as secret action designed to influence events abroad, including the use of political means or varying degrees of force. The political means can range from the employment of propaganda to large-scale efforts to finance foreign political parties or groups so as to influence elections or overthrow governments; covert action involving the use of force may include U.S. paramilitary operations or tlIP snpport of military operations by foreign conventional or unconventional military organizations. (Memorandum from:\Iitchell Rogovin, Special Counsel to the Director of Central Intelligence, House Select Committe.e on Intelligence, Hearings, 12/9/75, p. 1730.) , Thc Federali.~t, No. 47 (J. :\Iudison). 3 The Federalist, No. 48 (J. Madison). • JIeyer.~ v. United Statcs, 272 U.S. 52, 292 (1926). 5 United States Constitution, Article II, Section 2. 6 Ibid., Sec. 3, 7 Ibid., Art. I, Sec. 8. (31) 32 In national defense, the President IS made Commander-in-Chief, thereby haying the power to command the armed forces, to direct military operations once Congress has declared war, and to repel sudden attacks.' Congress, hO\ye\"er, has the exclusiye pO\,er to declare \yar, to raise and support the arllled forces, to make rules for their goyernment and regulation, to caJJ forth the militia, to TH'oYide for the common defense, and to make appropriations for all national defense acti yities.9 ~foreon>r. under the Xecessary and Proper clause, the Constitution specifies that Congress shaJJ haye the pO\yer "to make allla,Ys necessary and proper for carrying into execution" not only its o,Yn powers but also "aJJ other powers yested by [the] Constitution in the Goyernment of thl' rnited States, or in any Department or Officer thereot" 10 This constitutional framework-animated by the checks and balances concept-makes clear that the Constitution contemplates that the judgment of both the Congress and the President will be applied to major decisions in foreign affairs and national defense. The President, the holder of "the executiye power," conducts daily relations \yith other nations through the State Department and other agencies. The Senate, through its "advice and consent" power and through the work of its appropriate committees participates in foreign affairs. As Hamilton obsel'\'ed in The Federali-~t, foreign affairs should not be lett to the "sole disposal" of the President: The history of human conduct does not warrant that exalted opinion o{lmman yirtue which would make It wise to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.ll Similarly, in national defense. the constitutional framework is a "partial mixture of powers," calling for eoJJaboration between the executive and the legislative branches. The Congress, through its exclusive power to declare war, alone decides whether the nation shall move from a state of peace to a state of war. While as Commander-inChief the President commands the armed forces, Congress is empowered "to make rules" for their "government and regulation." 12 Moreover, in both the foreign affairs and defense fields, while the President makes executi\"e decisions, the Congress with its exclusive power over the purse is charged with authority to determine whether, or to what extent, government activities in these areas shall be funded. 13 The Constitution, while containin.~no express authority for the conduct of foreign intelligence activity, clearly endowed the Federal Government (i.e.. Congress and the President jointly) with all the power necessary to conduct the nation's foreign affairs and national 8 Ibid., Art. IT, Sect. 2. • Ibid., Sect. 8. 10 Ihid. 11 Thll F'''rfpralj..t. Xo. 71) (A. HAmilton\. ,. TTnitl'd Statf>~ Constitution, Article I, Section 8. 13 Ibid., Art. II, Sect. R. 33 defense and to stand on an equal basis with other sovereign states. 14 Inasmuch as foreign intelligence activity is a part of the conduct of the rnited States' foreign affairs and national defense, as. well as part of the practice of sO\'ereign states. the Federal GO'"ernment has the constitutional authoritv to undertake such activitv in accordance with applicable norms of int'ernationallaw.14a ~ ,Ve discuss below the manner in "which Congress and the Executive branch have undertaken to exercise this federal power, and the consistency of their action "'ith the Constitution's framework and system of checks and balances. B. THE HISTORICAL PR.\CTICE The ~ational Security Act of ID47 14b was a landmark in the eyolution of Pnited States foreign intelligence. In the 1947 Act, Congrrss creatrd the Xational Srcurity Council and the CIA. giving hoth of thesp entities a statutorY charter. Prior to 1947. Congress. desl)ite its substantial authority in foreign affairs and national defpnse, did not legislate directly \"ith respect to foreign intelligence activitv. rnder the Xecrssary and Proper Clause, and its power to make rules and regulations for the Armed Forces, Congress might han elaborated specific statutes authorizing and regulating the conduct of foreign intelligence. In the absen~e of such stahltes. Presidents conducted foreign intelligence activity prior to the 1947 Kational Securitv Act on their own authoritv. In wartime. the President's power as Commancler-in-Chief provided ample authority for both the secret gathering of information and covert action.15 The authority to coned forei!!.1l intelligence information before 1947 in peacetime can be viewed as implied from the Presi- "As the Supreme Court has declared. "the United States, in their relation to foreign countries ... are invested with the powers which belong to independ· ent nations...." [Clline8e Exrl1l8ion Ca8c, 130 V.S. 581, 604 (lR89).J 14. There are a number of international agreements which thp United States has entered into which prohibit certain forms of intervention in the domestic affairs of foreig"n statps. The Nations Charter in Article 2 (4) obligates all V.:\'". mpmbprs to 'rpfrain in thpir international relations from the threat or use of forcp against the tprritorial intpgrity of any statp." The Charter of thp Organization of American States (OAS) in Article 18 provides: ":'\0 State or group of States has the right to intervene, dirpctly or indirectly for any reason whatever, in the internal or external affairs of any other State. The forpgoing principle prohibits not only armed force but also any other form of intprfprpnce or attemptpd thrpat against the personality of the State or against its political, pconomic. and cultural elements." l"ndpr the Suprpmacy Clause of the Constitution (Art. VI, Sec. 2), treaty obligations of the Unitpd States are part of the law of the land. While the gpIlPral principles of such treati~s have not been spelled out in specific rul~s of application, and much depends on the facts of particular cases as well as oth~r principles of international law (including thp rig;ht of self-preservation, and the right to assist states against prior forpign intervention) it is cl~ar that the norms of international law are relevant in assessing the legal and constitutional aspects of covert action. 14b i50 V.S.C. 430. 15 In Totten v. United States, 92 U.S. 105 (1875), the Suprem~ Court upheld th~ authority of the President to hire, without statutory authority, a secret agent for intelligence purposes during the Civil \Var. Authority for wartim~ covert action can be implied from th~ President's powers as Commander-in-Chief to conduct military operations in a war declared by Congress. Compare, Tcnten v. United States, 34 dent's pOiwr to conduct forpign aJTairs.'G III addition to the more or le~s discreet gathering of information by the regular diplomatic service. the President sometimes used specially-appointed "executive agents" to secretly gather information abroad." In addition. executive agents \wre on occasion given secret political missions that were similar to modern da~' political covert action. 'S These. hmrever, tended to be in the form of relatively small-scale responses to particular concern:". rather than the continuous. institutionalized activity that marked the character of cOYert action in the period after the passage of the 1fl-!7 Xational Security Act. Then' were no precedents for the lwacdime use of covert action involving the use of armed force of the type conducted after 1947. 1. Foreign Intelligence and the President's Foreign Affairs Power Although the Constitution provides that the President "shall appoint ambassadors, other public ministers and consuls" only "by and with the achice and consent of the Senate." beginning with "\Yashington Presidents have appointed special envoys to carry out both overt diplomatic functions and foreign intelligence missions.'9 The great majority of these envovs \,ere sent on O\'elt missions. such as to negotiate treaties or to represent the United States at international conferences. Some, 11o\rever, were sent in secrecy to carry out the near equi,'a]ent of modern-day intelligence collection and covert political action. For example. in connection with U.S. territorial designs on central and western Canada in 1869, President Grant's Secretary of State sent a private citizen to that area to investigate and promote the possibilitv of annexation to the United States.20 Presidential discretion as to the appointment of such executive agents derived from the President's assnmntion of the conduct of foreign relations. From the beginning. the President represented the United States to the world and har! exclusive charge of the channels and processes of communication. The President's role as "sale organ" of the nation in dealing with foreign states was recognized bv .John Marhall in 1816 21 and reflected the views expressed in The F('derali.~t ,. Compare. United State.~ v. Butenko 494 F.2d 1)93 (3d Cir. 1974) : "Decisions affectinl; the United States' relationship with other sovereilm states are more likely to advance our national interests if the President is apprised of the intentions. capahilities and possible responses of O'ther countries." 17 Henry Wriston, Exec-utive Agents in Americ(1;n Foreign Relati(Jn,~, (1929, 1967). ,. Ibid.. pp. 693, ct. seq. ,. The first i'llch specilllly-anpointed individual was Governeur Morris, sent by Presidpnt "'ashin!ctnn in 1789 as a "private a/?:ent" to Britain to explore the possibilities for opening normal diplomatic relations. Morris was appointed in Octoher 1789 becanse "'ashington's Secretary of State, Jeffl'rson, was not :vet fllnctionin/?:. The Jl1is'ion was not reported to thf' Congress nnti1 FebrullrV ]791. Henrv Wriston. "The Special Envoy," Foreign Affairs, 38 (1960), pp. 219. 22a) 2<J 'Vriston. Rx~clltil'e A!l("YIt. in American Forrinn Rel"tion.•, p. 739. 21 Marshall spokl', not as Chief Justice in an opinion of the Supreme Court, hut rather in a statement to thl' House of Representatives. The House of Representatives was engaged in a debate as to whother a demond h:v the British Government for the extradition of one Robbins was a matter for the courts or for the President, acting unon an extradition treaty. Mar"h'll! argued that the case involved "a national demand made upon the nation." Sin('e the Pre>;ident is the "sole organ of the nlltion in its external relation,," M'lrRlJ"n ,,'lid. "of conseou,mce. the demlll'd con only be made upon bim." rIO Annal" of Congress 613 (1800), reprinted in 5 Wheat, Appendix, Note 1, at 26 (U.S. 1820).J 35 that the characteristics of the Presidency-unity, secrecy, decision, dispatch-were especially suited to the conduct ~f diplomacy.22 As a consequence, histol'ical development saw the PresIdent ta~e charge of the daily conduct of foreign affairs, including the formulatIOn ~f ~uch of the nation's foreign policy. But "sole organ" as to commUlllcatIOns with foreign goYerninents and historical practi~e did ~ot amount ~o "sole disposal" in a constitutional sense over foreIgn affaIrs; as HamIlton declared, the Constitution did not grant that degree of power to the President in forei(Tn affairs.23 Moreover, Marshall's reference to the President as "sole ~rgan" did not purport to mean that the President was not subject to congressional regulation, should ~ongress wish to act. For Marshall, in addition to speaking of the PreSIdent as "sale organ," went on to point out that "Congress, unquestionabl» may prescribe the mode" bv which such power to act was to be exercIsed.24 Con(Tress, with its o,,,n constitutional powers in foreign affairs, its pow~r over the purse, and under the ~uthority cont~ined in the ~ecessary and Propel' Clause, had the optIOn of regulatlllg the practIce of usin(T executive a(Tents on foreign intelligence missions, as well as the cond~ct of forei;n intelligence activity by other means,zs 92. The Use of Force in Oovert Action Covert action may include the use of armed force. In modern times, the President's authorization of the CIA-financed and directed invasion of Cuba at the Bay of Pigs and paramilitary operations in Laos are examples of this type of covert action. 2:l Nor did Marshall intend to say that "sole organ" meant the power of "sole disposal." As the eminent constitutional expert Edward S. Corwin wrote, "Clearly, what Marshall had foremost in mind was simply the President's role as instrument of communication with other governments." (Edward S. Corwin, The President's Control ot Foreign Relations, p. 216.) 23 The Federalist, No. 75 (A. Hamilton). ,. Citing Marshall's expression, the Supreme Court has recognized the President as "sole organ" of communication and negotiation in foreign affairs. [United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1952).J Although dicta of .Tustice Sutherland in the Curtiss-Wright opinion put forward a broad view of "inherent" Presidential power in foreign affairs, the case and the holding of the court involved, as Justice Jackson stated in his opinion in the Steel Seizure easE', "not thE' question of the President's power to act without congressional authority, !Jut the qUE'stion of his right to act under and in accord with an Act of Congress." [Yollng~town Steel & Tube Co. v. Sawyer, 343 U.S. 579, 635-636 (1952) (consurring opinion).] In Curtiss-Wright a joint resolution of Congress had authorized the President to embargo weapons to countries at war in the Chaco, and imposed criminal sanctions for any violation. After President Franklin D. Roosevelt proclaimed an embargo, the Curtiss-Wright Corporation, indicted for violating the embargo, ch~llPong-ed the congressional resolution and the President's proclamation, dalmmg Congress had made an improper delegation of legislative power to the President. Speaking for six justicE'S, Justice Sutherland sustainPd the indictment, holding only. as .Justiee .Tackson later noted, "that the strict limitation upon Congressional delegations of power to the President over internal aff'lirs does not apply with respect to delegations of power in extE'mal affairs." (343 U.S. at 636.) 2S In 1793. for example, Congre~s established a procedure for the financing of s~ret forE'ign affairs operations. It enacted a statute providing for expenses of "mtE'rcourse or treaty" with foreign nations. The Act required the President to ~eport all such expenditures, hut granted him the powl'r to give a certificatl' in heu of II report for tho"e pavmpnt" the PrE'sident deemed shOUld be kept secret. (Act of February 9, 1973. 1 Stat. 300. 36 The executin branch relies in large part on the President's own constitutional pmwrs for authority to conduct such covert action.26 After the failure of the Bay of Pigs operation in 1961, the CIA asked the .rustice Department for an analyeis of the legal authority for covert actions. In its response, the .rustice Depaliment's Office of Legislative Council stated: It "'01l1d appear that the eXf'clltive Iml!wh. Imder the direction of tl1(> President. has Ilf'en exercising without express statutory authorization a function ,,'hich is within the constitutional powers of the President. and that the CIA was the agent selected by the President to carry cut these fllllctions. 27 TIll' .rusticr- Department memorandum pointe(l to the President's foreign relations power and his responsibility for national security.28 .\rguing by analogy from the President's power as Commander-inChief to conduC't a declared war, the memorandum contended that the President could conduct peacf'time covert actions involving armed force ,,'ithout authority from Congress. The memorandum argued that there was no limit to the nwans the President might employ in exercising his foreign affairs power: .Just as "the pmver to wage war is the power to wage war successfully," so the pmver of the President to conduct foreigll relations should be deemed to be the pO\Y('r to conduct foreign relations successfully, by any mea11.~ necessary to combat the measures taken by the Communist bloc, including both open and cm'ert mensures.2D [Emphasis added.] In view of the Constitution's grant of concurrent jurisdiction to the Congress in foreign affairs and Congress' exclusive constitutional authority to declare \var, there is little to support such an extravagant claim of Presidential power in peacetime. The case which prompted the .Justice Department's argument-the invasion of Cuba at the Bay 26 In September 1947, the CIA General Counsel expressed the opinion that activity such as "hlack propaganda, ranger and commando raids, behind-the-lines sabotage, and support of guerrilla warfare" would constitute "an unwarranted extpnsion of the functions authorized" by the 1947 Act. (Memorandum from the CIA Gpnprnl Connspl to Director, 9/25/47.) And, in 1969, the CIA Gem'ral Counsel wrote that the 1947 Act provided "rather doubtful statutory authority" for at Ipast those covert actions-such as paramilitary operationS-Which were not related to intelligence gathering. (Memorandum from CIA General Counsel to Dirpctor, 10/30/69.) The Agrncy's General Counsel took the position that the anthority for covert action restrd on the President's dplegation of his own constitntional anthority to CIA throngh various National Security Council Directin> s. (Ibid.) , 21 :\Irmorandum, Office of Legislative Counsel, Department of Justice, 1/17/62, p.11. " Ibid., ]1.7. The memorandum stated: "Under modern conditions of 'cold war,' the Prpsident can properly re/ffird the conduct of con'rt activities ... as nt>cessary to the efl't'Ctive and successful con( 1uct of fort>i~n relations and the protection of the national st>curity. 'When the rnitt>(] Statt>s is attacked from without or within, the President may 'mePt force \vith fo\,('e" ... In \Yal!'prin~ a worldwide contest to strengthen the free nations and contnin thp C'ommnnist nations, and therphy to preserve the existencp of the rnited Statt>s, the Presidt>nt should hp det>med to have comparahle authority to mpt>t covf>rt actiYitit>s with cO\'ert activities if he deems such aotion necessary and consistent with our national objectives." . ,. Ibid. 37 of Pigs-illustrates the serious constitutional questions which arise. In that operation. the President in effect authorized the CIA to secretly direct and finance the military invasion of a foreign country. This action approached, and may have constituted, an act of war. At the least, it seriously risked placing the United States in a state of war vis-ri-?'is Cuba on the sole authority of the President. Absent the threat of sudden attack or a grave and immediate threat to the security of the country, only Congress, under the Constitution, has such authority. As .rames Madison declared, Congress' power to declare war includes the "power of judging the causes of war." 30 Madison wrote: Every just view that can be taken of the subject admonishes the public of the necessity of a rigid adherence to the simple, the received. and the fundamental doctrine of the constitution. that the p01ver to declare war, including the power of judging the causes of war, is fully and exclusively vested in the legislature...." 31 This view was also affirmed by Hamilton who, although a prine-ipal exponent of expansive Presidential power, wrote that it is the exclusive province of Congress, ,vhen the nation is at peace, to change that state into a state of war ... it belongs to Congress only, to go to war.32 Nor is there much support in historical practice prior to 1950 for the use of armed force to achieve foreign policy objectives on the sole authority of the President. The 1962 .Justice Department memorandum argued that the practice of Presidents in using force to protect American citizens and property abroad was autllority for covert action involving armed force. 33 Before the post-'Vorld 'Val' II era, Presidents on occasion asserted tlwir own authority to use armed force short of war, but as the Senate Committee on Foreign Relations noted in 1973, these operations were for "limited, minor, or essentially non-political purposes." As the Foreign Relations Committee stated: During the course of the nineteenth century it became accepted practice. if not strict constitutional doctrine, for Presidents acting on their own authority to use the armed forces for such limited purposes as the suppression of piracy and the slave trade, for "hot pursuit" of criminals across borders, and for the protection of American lives and property in places abroad where local gOYCl'l1ment was not functioning effectively. An informal, operative distinction came to be accepted between the use of the armed forces for limited, minor or essentially nonpolitical purposes and the use of the armed forces for "acts of war" in the senSe of large-scale military operations against sovereign states. 34 That these operations were, as the Committee on Foreign Relations noted, for "limited, minor, or essentially non-political purposes" is also 30 Lrtters of He/vii/ius (1793). :\ladison, Writings, Yo!. 6, p.174 (Hunt ed.). 31 Ibii/. 3:J Hamilton, Works, Vo!. 8, pp. 249--250 (Lodge ed.) 33 ,Justice Department Memorandum, 1/17/62. p. 2. " Senate Report ;'\0. 220, 93d Cong.. 1st Sess. (1973). 38 affirmed by the eminent authority on constitutional law, Edward Corwin. Prior to the Korean 'Val', the "vast majority" of such cases, Corwin wrote, "im"olYed fights with pirates, landings of small naval contingents on barbarous coasts [to protect American citizens], the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border." 35 To stretch the President's foreign relations power so far as to authorize the secret use of armed force against forei~TJl states without congressional authorization or at least "advice and consent," appears to go ,,"ell beyond the propel' scope of the Executive's power in foreign affairs under the Constitution. ~Ioreover, where Congress is not informed prior to the initiation of such armed cO"ert action-as it was not, for example, in the Ray of Pigs operation-the constitutional system of checks and balances can be frustrated. 'Vithout prior notice, there can be no effective check on the action of the executi'"e branch. Once cO\"ert actions involving armed force, such as the invasion of Cuba at the Bay of Pigs or paramilitary operations, are begun, it may be difficult if not impossible for practical reasons to stop them. In such circumstances, cO\"ert action involdng armed intenention in the affairs of foreign states lllay be inconsistent with our constitutional systPIll and its principle of checks and balances. C. TilE COXSTITrTIOXAL POWER OF CONGRESS To REGULATE THE COXDLCT OF FOREIGX IXTELLIGENCE ACTIVITY Prior to the 1947 National Security Act, Congress did not seek to expressly authorize or regulate foreign intelligence activity by statute, Congress' decision not to act, however, did not reduce or eliminate its constitutional power to do so in the future. The Necessary and Proper Clause and its pO\ver to "make rules for the government and regulation" of the armpd forces, along with Congress' general powers in the fields of forC'ign affairs and national defense, ,vere always available. In this light, the question of the legal authority for the conduct of foreign intelligence activity in the absence of express statutory authorization can be viewed in the lllanner set forth by Justice Jackson in the Steel Seizure case. He "Tote: "'hen the President acts in abpence of either a congressional grant or denial of authority, he can only rely upon his own independC'nt powers, but there is a zone of bvilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent Presidential responsibility.36 Foreign intellig<:'nce activity, particularly political covert action not invoh"ing the use of force, can be seen as lying in such a "zone of twilight" in which both the President and the Congress have concurrent authority and responsibilities. (As discussed above, the use of covert '" Erlwnrrl S. Corwin. "The PreRident's Power," in Haight and Johnson, eds. Th'" Pr"'8id"'1lt'8 Roll' anrl PfJ1CCN. (1905), p. 361. 36 Youngstown 00. Y. SalCycr. 343 U.S. m9. 637 (1952) (concurring opinion). 39 action involving armed force raises serious constitutional problems where it is not authorized by statute, particularly if Congress is not informed.) 'Vhen Congress does not act, the President may in certain circumstances exercise authority on the basis of his own constitutional powers. Congress can, however, choose to exercise its legislative authority to regulate the exercise of that authority. In view of the President's own constitutional powers, Congress may not deprive the President of the function of foreign intelligence. But, as Chief Jus~ice Marshall stated, Congress can "prescribe the mode" by which the President carries out that function. And the Congress may apply certain limits or controls upon the President's discretion. The Supreme Couri has affirmed this constitutional power of Congress. In Little v. Barrem<l/7 Chief .Tustice Marshall, speaking for the Court, found the seizure by the U.S. Navy of a ship departing a French port to be unlawful, even though the Navy acted pursuant to Presidential order. By prior statute. Congress had authorized the seizure of ships by the Navy, but limited the types of seizures that could be made. The President's orders to the Navy disregarded the limits set out in the law. If Congre~s had been silent, Chief .Tustice Marshall stated, the President's authority as Commander-in-Chief might have been sufficient to permit the seizure. But, Marshall declared, once Congress had "prescribed ... the manner in which this law shall be carried into execution," the President was bound to respect the limitations imposed by Congress.38 There have been at least as many conceptions of the range of the President's own power as there have been holders of the office of the President. In the case of foreign intelligence activity, .Tustice .Tackson's statement that "comprehensive and undefined Presidential powers hold both practical advantages and grave dangers for the country" 39 is particularly relevant. especiallv in view of the tension behveen the need for secrecy and the constitutional principle of checks and balaJ1f'(,s. Yet. as .Tustice Brandeis declared, "checks and balances \\'ere established in order that this should be a government of laws and not of men." 40 Th~ H)~7 Nation,ll Security Act represented the exercise of Congress' constItutIOnal power to order the conduct of foreign intelligence activ~ t~ under law. By placing the authority for foreign intelligence actlnty on a statutory base. Conqress sflurrht to reduce the reliance on "comprehensive and undefined" Presidential power that had previously bC'en the principal source of authority. However, the language of the 1947 Act did not expresslv authorize the conduct of cm-ert action and. as discussed earlier. Congress apparently did not intend to grant such authority. As a result. inherent Presidential nower has co~tinued to serve as' the principal source of authority for covert actIon. Congress continued to exercise this constitutional power in subsequent legislation. In the Central Intelligence Act of 1949,41 Congress 37 2 Cranch 170 (1805). 38 2 Cranch 170, 178 (1805). 3. YOIl11[lst01cn CO. Y. Saleyel', 3J 3 U.S. 579. 634 (1952) (concllrrin~opinion). "Myers v. United States, 272 U.S. 52, 292 (1926) (dissenting opinion). "50 U.S.C. 403a-403j. 40 set out the administrative procedures governing CIA activities. The 1949 Act regulated the CIA's acquisition of material, the hiring of personnel and its accounting for funds expended. In 1974, Congress imposed a reporting requirement for the conduct of certain foreign intelligence activities. In an amendment to the Foreign Assistance Act,42 Congress provided that no funds may be expended by or on behalf of the CIA for operations abroad "other than activities intended solely for obtaining necessary intelligence" unless two conditions were met: a) the President must make a finding that "each such operation is important to the national security of the Gnited States", and b) the President must report "in a timely fashion" a description of such operation and its scope to congressional committeesY In short. the Constitution provides for a system of checks and bal: mces and interdependent power as between the Congress and the executi,- e branch ,vith respect to foreign intelligence activity. Congress, with its responsibility for the purse and as the holder of the legislative power, has the constitutional authority to regulate the conduct of foreign intelligence activity. .. 22 U.S.C. 2422. <3 Ibid.
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