By Cliff Montgomery – June 30th, 2018
Covert actions and clandestine activities remain some of the greatest threats to a functional democracy.
Just consider that the Department of Defense Dictionary of Military and Associated Terms defines ‘covert operation’ as “an operation that is so planned and executed as to conceal the identity of or permit plausible denial by the sponsor,” and adds that “a covert operation differs from a clandestine operation in that emphasis is placed on concealment of identity of [the] sponsor rather than on concealment of the operation. [Italics added]”
Such actions ensure that the American people cannot possibly know all that is being done in their name by U.S. officials. It is a frightening lack of democratic accountability.
It’s easy to believe this may be a recipe for disaster when we further recall that the president sets intelligence policy, that the man who now serves as president is a person many consider dangerously ill-informed about the world, and that, as a study quietly released in May by the Congressional Research Service (CRS) stated, “Congress has no statutory prerogative to veto [a] covert action when informed through a presidential finding.”
But, the CRS report added, Congress “can influence conduct of an operation through the exercise of congressional constitutional authority and responsibilities to authorize war, legislate, appropriate funds, and otherwise interact with the executive branch.”
Whether it has the will to do so is a matter for another day.
Below, the Spark offers a number of fascinating quotes from this CRS study:
Introduction
“This report posits a potential framework for congressional oversight of intelligence-related programs and activities using the existing committee structure and notification standards for the most sensitive intelligence activities: covert action and clandestine intelligence collection.
“The framework may assist Congress in assessing the premises justifying each of these activities, their impact on national security, operational viability, funding requirements, and possible long-term or unintended consequences.” […]
“The formal structure and requirements for congressional oversight of the intelligence community originated with investigations by two congressional committees in the 1970s—in the Senate, chaired by Idaho Senator Frank Church, and in the House, chaired by Representative Otis Pike—that provided a basis for the establishment of today’s Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI).
“At its inception, congressional oversight of intelligence focused primarily on two themes: investigation of past abuses and organizational reform of the intelligence community. Those efforts have produced results. For example, the Church and Pike committees’ investigations into unlawful and unethical intelligence activities provided a precedent for Congress to institutionalize oversight to ensure intelligence activities upheld the law and American values.
“Similarly, congressional oversight of intelligence has resulted in reform, such as the Intelligence Reform and Terrorist Prevention Act (IRTPA) of 2004, which provided the statutory basis for implementing recommendations of the National Commission on Terrorist Attacks Upon the United States (the ‘9/11 Commission’).
Background
“A prominent recommendation of the National Commission on Terrorist Attacks upon the United States was to strengthen intelligence oversight. Although congressional oversight of intelligence since the Church and Pike committees had resulted in several periods of reform, Congress had not been able to sustain the momentum it had generated earlier.
“As the Final Report of the 9/11 Commission put it:
…the oversight function of the Congress has diminished over time. In recent years, traditional review of the administration of programs and implementation of laws has been replaced by ‘a focus on personal investigations, possible scandals, and issues designed to generate media attention.’ [Thus] the unglamorous but essential work of oversight has been neglected, and few members past or present believe it is performed well….[T]he executive branch needed help from Congress in addressing the questions of counter-terrorism strategy and policy, looking past day-to-day concerns….Congress…often missed the big questions—as did the executive branch. […]
A Framework for Oversight – Questions for Congress
“Congress has no statutory prerogative to veto covert action when informed through a presidential finding. However, it can influence conduct of an operation through the exercise of congressional constitutional authority and responsibilities to authorize war, legislate, appropriate funds, and otherwise interact with the executive branch.
“As former CIA Inspector General L. Britt Snider put it:
If the committees do not support a particular operation or have concerns about aspects of it, an administration would have to think twice about proceeding with it as planned. If it is disclosed or ends in disaster, the administration will want to have had Congress on board. If it is going to last more than a year, the committees’ support will be needed for continued funding. The committees are also likely to be better indicators of how the public would react if the program were disclosed than the administration’s in-house pundits.
“As oversight committees and Congress assess each impending covert action from a strategic point of view, Congress may wish to organize its review using the following five issue areas:
1. The activity’s statutory parameters,
2. U.S. national security interests,
3. U.S. foreign policy objectives,
4. Funding and implementation, and
5. Risk assessment.
“By extension, oversight of anticipated clandestine intelligence activities that might also shape the political, economic, or military environment abroad can apply the same framework, and, like oversight of covert action, address the risk of compromise, unintended consequences, and loss of life.
Statutory Parameters of the Activity
“Section 3093(a)(5) of Title 50, U. S. Code specifies that ‘a finding [for a covert action] may not authorize any action that would violate the Constitution or any statute of the United States.’
“Congressional oversight efforts may have the goal of ensuring covert action does not violate the law, to include any domestic law enacted to fulfill the terms of a non-self-executing treaty.
Questions for Congress
- Does the covert action or clandestine intelligence activity violate domestic U.S. law?
- Does the activity violate any domestic law connected to a non-self-executing treaty?
- Is the activity likely to violate international law? What are the national security implications of conducting a covert action that may violate international law?
- Would Congress likely choose to provide limitations on the covert action through legislation?
- Does the covert action or clandestine activity, if conducted during hostilities, comply with the laws of armed conflict in accordance with DOD policy?
National Security Interests
“Congressional oversight of covert action is generally recognized to be especially important to ensuring proper checks and balances, particularly under circumstances in which no one outside of a small number of authorized intelligence professionals will know anything about the covert action or clandestine activity.
“Yet, the 9/11 Commission observed:
Congress had a distinct tendency to push questions of emerging national security threats off its own plate, leaving them for others to consider. Congress asked outside commissions to do the work that arguably was at the heart of its own oversight responsibilities.
“Oversight … enables Congress to provide a timely check on the development of a covert action or clandestine intelligence activity that might have serious flaws.
“Maintaining necessarily tight security surrounding planning for sensitive intelligence activities may present a challenge, because the few individuals outside the intelligence community with access may offer only limited perspective, overlook essential details, and too easily accept premises that might not bear up against broader scrutiny.”
