A Survey of the Rule of Law Governing the
U.S. Intelligence Community
By Daniel G. Pinegar
University of Iowa
College of Law
National Security Law &
Emergency Powers Seminar
Visiting Professor Domrin
November 23, 1999
______________________________________________________________________________________
A Survey of the Rule of Law Governing the
U.S. Intelligence Community
By Daniel G. Pinegar*
SUMMARY: Over the years the United States
Intelligence Community has consistently received harsh criticism about policy
choices it makes or the particular mode of operations it has used. However, the Intelligence Community, and in
particular the CIA, have a rich source of constitutional and legislative
history since World War II that duly authorizes much of what is criticized. Indeed, even the social and political
atmosphere that spawned the Truman Doctrine in March of 1947 heralded a strong
national security system. While certain
time periods have invoked closer scrutiny, such as the aftermath of Vietnam in
the 1970’s, and hence greater reforms, the general need and recognition of the
role of intelligence agencies in ensuring our nation’s national security is
firmly established. This paper examines
those paramount constitutional, legislative and judicial cases that are the
foundation for the United States Intelligence Community. It discovers that although wrongful conduct
did occur in the first twenty-five years of intelligence exercises, when
Congress exercises their oversight
roles in furtherance of the principles behind the framers’ separation of
powers, the intelligence community is
soundly governed by the rule of law.
_________________________________________
B) Constitutional Grants of Powers: the Executive..........6
A) The Central Intelligence Agency........................ 9
1) The National Security Act of 1947............... 10
2) The CIA Act of 1949............................. 11
3) Curbing the Imperial Presidency................. 12
4) Executive Order 12,333.......................... 14
B) Department of Defense Intelligence Agencies............16
C) Other Executive Branch
(non-DOD) Intelligence Agencies.17
D) Intelligence & Domestic Activities.................... 19
1) Abuses of Power in “Foreign” Affairs? .......... 20
2) Domestic Abuses: CHAOS and Electronic Intercepts 20
III. The Role of the Decision Makers.......................... 23
A) Executive Oversight and Advisory Boards................23
B) House and Senate Committees on Intelligence............24
C) The Future, Predictions and Conclusions................27
IV. Conclusion............................................... 26
_________________________________________
“The greatest dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding.” – J. Brandeis[1]
I.
Introduction:
The underlying problem of the intelligence community (IC)[2] is that “basic security requirements conflict with the fundamental precept of an open, democratic, representative government.”[3] Nevertheless, while intelligence operations operate in secrecy from the general population,[4] so long as the agencies within the IC are acting within the democratic rule of law and for the greater good of national security,[5] and the Congress has both policy and legislative oversight capabilities, the cloak of secrecy should not fall merely from accusations of illegal conduct.[6] Because of the secret nature of both intelligence operations[7] and most of Congressional oversight,[8] the proper focus to ensure continued enforcement of the constitution and rule of law is by examining the founding principles and laws of the IC. Indeed it would be ironic if the very “individual liberties of American citizens depend on government observance of the law” and, yet, the government itself at times ignores the law in the name of national security to preserve those liberties.[9]
Ultimately at issue is whether the intelligence community has had a legal foundation sufficient to support the many activities and decisions made by the respective agencies since World War II.[10] Although this essay will focus on the legal underpinnings of the CIA, it should also awaken the reader to many other areas of national security and intelligence law that often go unpublished because the fabric of intelligence and security depends on numerous agencies.[11]
Section II examines what legal authority the CIA, Department of Defense (DOD) and non-DOD intelligence agencies have. This will include an examination of the major statutes, executive orders and caselaw that are routinely exalted as the legal basis for agency action. A necessary corollary to this is the historical context from which different laws spring, and whether the agencies have operated within their actual and constitutionally granted authority. Section III addresses how the intelligence community is supplemented and influenced by the other groups like the Congressional intelligence committees in the Senate (SSCI) and House (HPSCI) and the role of the President’s Foreign Intelligence Advisory Board (PFIAB). The conclusion that I have found is that since at least WWII, the U.S. IC has both legal foundations and has operated legally – for all of the incidental accusations of illegality[12] – under the Rule of Law.
The Central Intelligence Agency (CIA) has been plagued with the myth that it, and only it, is the United States’ and President’s spy.[13] As a result, the Director of Central Intelligence (DCI) and the CIA often receive both the political reprimands of public outcry[14] as well as the reformations and investigations of the Congress.[15] What is often overlooked, however, is that the CIA is only one part of what has become the U.S. Intelligence Community.[16]
While the CIA is the only generally known[17] independent U.S. intelligence agency, the IC is divided between Department of Defense and Non-DOD Departmental Intelligence elements.[18] Although some agencies have at times been technically within the Executive Branch, this division is how the IC portrays itself.[19] DOD intelligence activities are coordinated through the Defense Intelligence Agency (DIA), the National Security Agency (NSA), the National Imagery and Mapping Agency (NIMA), the National Reconnaissance Office (NRO), and the intelligence divisions of the Air Force, Army, Marine Corps, and Navy.[20] The Non-DOD elements include the intelligence units within the Federal Bureau of Investigation (FBI) and the Departments of State, Energy, and Treasury.[21] In charge of the community and the CIA is the DCI who is assisted by the community management staff and the National Intelligence Council.[22] It is the DCI who directs and coordinates the many diverse activities of all IC organizations.[23]
The reasons why intelligence has remained a profession for centuries[24] is that nation-states have felt that national strength can come only by knowing thy enemy.[25] Thus, the key national asset, when it is ultimately boiled down, is information.[26] Information is the lobster[27] that is desired by everyone who holds a seat on the U.N. Security Council[28] or at the annual G7 summit,[29] and by the many more who do not. Thus, within the United States the consumers of intelligence captured by the IC primarily include the President, the Cabinet, the Congress, and the military forces.[30] In addition the IC is likely to treat certain infrastructure units and major corporations as proper, or at least likely, consumers of gathered intelligence.[31] But information in and of itself is neither intelligence nor knowledge. It is the tenured analytical processes of the IC[32] that turn human intelligence (HUMINT), photo intelligence (PHOTINT), and signal intelligence (SIGNET) into bite-size pieces of truth[33] for the consumer.[34]
In addition to the official IC, there are a variety of organizations that are equally important in understanding and analyzing the legality of the intelligence agencies and their actions. These include the President’s Foreign Intelligence Advisory Board, the Senate Select Committee on Intelligence (SSCI) and House Permanent Select Committee on Intelligence (HPSCI).[35] It is through these executive and legislative compartments that intelligence decisions are made or criticized.
Constitutional
law also separates between the branches the manner in which intelligence
agencies are governed. It is this constitutionally imposed separation of
powers, even in foreign policy, that is essential to understand in order to
analyze the legality of the intelligence community. Simply, while the legislature governs through lawmaking and
hearings, the Executive allegedly executes the laws through executive orders,
presidential directives, national Security Council decisions and the like.
However, the extent to which the strength of one branch over the other in
foreign policy has swayed over. Once
solely within the Executive Branch, foreign policy is now nearly equidistant
with the Legislative Branch. Thus, the underpinnings of Executive and
presidential powers is crucial to understand the legal foundations of the
IC.
The Constitution vests in the President the executive power of the United States.[37] The president’s powers also include the power to make treaties with the advice and consent of the Senate,[38] nominate and receive ambassadors and other public ministers and consul,[39] act as Commander-in-chief of the army and navy,[40] and perhaps most importantly, “take Care that the Laws be faithfully executed.”[41] To understand what the framers of the Constitution meant the President’s role in foreign policy to be it is necessary to understand the theorists of their day.[42]
One reason that the executive powers of the president are not defined in as much detail as those of the Legislative Branch is that, “‘it was well understood by [those] raised on Locke, Montesquieu and Blackstone’...[that] the Executive should be preeminent in foreign affairs.”[43] On April 24, 1790, just shortly after the Constitution was adopted, Thomas Jefferson stated that the “transaction of business with foreign nations is Executive altogether.”[44] In response to one of the first presidential proclamations[45] Alexander Hamilton argued that the President is vested with all executive powers and that the State’s foreign policy is such an executive power.[46] However, the recognition that the Constitution designates the president as the “sole organ of the federal government in the field of international relations” was not affirmed by the Supreme Court until United States v. Curtis-Wright Export Corp. in 1936.[47]
In Curtis-Wright, a joint resolution authorizing the President to ban the sale of arms to countries engaged in a Bolivian conflict was challenged as an unconstitutionally broad delegation of legislative power to the president.[48] In upholding the resolution, the Court reasoned that the President’s special access to sources of information required “a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”[49] Thus, Curtis-Wright becomes essential in authorizing the President to issue Executive Orders pursuant to legislation to control and influence foreign affairs, and the intelligence community.
Notwithstanding, the executive powers described by the Court in 1936 have since had some limitations imposed,[50] namely by Youngstown Sheet & Tube Co. v. Sawyer[51] in 1952 and the War Powers Resolution of 1973.[52] However, albeit beyond the scope of this paper, these limitations are conditional and may not be immediately applicable to intelligence agencies within the IC.[53] Nonetheless, the period of a strong constitutionally sound President in foreign affairs between 1936 and 1951 left enough room for the birth of the modern intelligence era.[54] It is this constitutional framework from which the Executive exercises his authority, either independently through executive orders or through enabling legislation, that Section II examines with respect to the IC in greater detail.
In conjunction with the timing of WWII, Curtis-Wright enabled the United States to build a strong and legal intelligence community.[56] Since the creation of the Office of Strategic Security (OSS) during WWII,[57] the intelligence community has had a remarkably sound legal foundation for intelligence activities with the passage of the National Security Act of 1947[58] and later the Central Intelligence Agency Act of 1949.[59] As traditionally is done, once Congress creates an administrative agency, it is the Executive Branch that has the constitutionally delegated authority to execute the enabling law.[60] In doing so, a series of executive orders,[61] namely 12,333,[62] have been partnered with the original Acts to govern the details of intelligence agencies. Thus, it is only in light of these legislative and executive mechanisms that any legal analysis must begin.[63]
After the OSS was disbanded in 1945, and in response to Maj. Gen. William J. Donovan’s proposed plan (the “Donovan Plan”), President Truman established the Central Intelligence Group to operate under the National Intelligence Authority (NIA) in January, 1946.[64] Merely twelve months later the NIA and Central Intelligence Group were disbanded.[65] But as a result of the debate spawned by the Donovan Plan,[66] Congress enacted the National Security Act of 1947.[67] It is this single piece of legislation that has since structured the intelligence community[68] – creating both the CIA and the National Security Council.[69] Subsequently, Congress also enacted the CIA Act of 1949 to protect agency disclosure of organization or financial information resulting in greater use of covert operations.[70] In conjunction with Executive Order 12,333, this legal triad governs the policy and day-to-day operational decisions of the CIA and IC.
The National Security Act of 1947 is the law “under which the Central Intelligence Agency as we know it today was created.”[71] It is “the most important formative Act” in organizing the current national security structure of the United States.[72] In creating both the NSC and the CIA, the Act established the ground rules of operation.[73] The Act gives to the CIA five duties, including: (1) to advise the National Security Council in intelligence activities as relate to the national security; (2) to make recommendations to the NSC to coordinate intelligence activities; (3) to “correlate and evaluate intelligence relating to national security,” provided, however, that other departments and agencies would collect the information and have no police-like powers; (4) to “perform, for the benefit of then existing intelligence agencies, such additional services of common concern as the National Security council determines;” and (5) “to perform such other functions and duties related to intelligence affecting the national security” as the NSC may direct.[74]
Although this law has been said to not give the CIA the authority to either collect new information or conduct “cloak-and-dagger” work,[75] the Agency and NSC determined early that the broad delegations in section five were the CIA’s “necessary and proper clause.”[76] However, once this problem was noticed, the Act was amended to specifically include an explicit collection mechanism in §403-3(d).[77] The NSA of 1947 enabled the President, following on the sentiment from the Truman Doctrine and a broad delegation of foreign affairs powers, to issue executive orders in the name of “national security” – crucial for the IC.[78]
Although the New York Times called the atmosphere in which the CIA Act was passed a “dense mystery,” it was not particularly important in its day.[79] First, in addition to freeing the Agency from both financial disclosure and accountability of funds, the Act gave the DCI great freedom in conducting covert operations.[80] For instance, the Act expressly gave the CIA the permission to expand sums allocated by Congress “without regard to the provisions of law and regulations relating to expenditures of Government funds.”[81] As CIA’s general counsel, Lawrence Houston,[82] noted, “provisions of unvouchered funds and inviolability of such funds from outside inspection is the heart and soul of covert operation.”[83] Thus, funds become concealed in inflated appropriations bills and then are secretly transferred by the OMB to the intelligence agencies after the bills are enacted.[84] This Act, in addition to authorizing the Amendment of the NSA providing collection means, was crucial in legally authorizing covert operations and indeed much of the modern intelligence operations of the IC.[85]
Second, although the Act is known for establishing “Congress’ authority to regulate the CIA,” the strength of this regulation and the oversight provided in the early years was questionable, if not entirely absent.[86] Thus, because at the time the agency received a large lump amount of funds, the Act only further enabled the President to act with nearly unbridled authority.
3. Curbing the Imperialist Presidency
In 1954, just five years after the CIA Act of 1949, the fear that was felt in the country was evidenced by the first Report on CIA Activities: “It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever ends.” This paranoia would consequently result in numerous intelligence activities - conducted in the name of national security – but not governed by spirit of the rule of law.[87] Between 1953[88] to 1961 the CIA was at the height of its Cold War activities, hosting covert operations in more than 48 countries.[89] However, the Vietnam “war” in 1959, the Cuban Missile Crisis in October of 1962, the failed and accidental assassinations in Chile, the internal security leaks in the Pentagon Papers case, and not to mention Watergate, all led to a frustrated Executive.[90]
In addition to straining relations between Congress and the President and the people and government in general, the judiciary similarly began to issue more “national” security based opinions. Indeed, the Supreme Court affirmed in 1967 in the likeness of Brandeis, that “[t]his concept of national defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term national defense is the notion of defining those values and ideals which set this nation apart.”[91]
Perhaps the most important legislative action since the 1949 CIA Act was the Hughes-Ryan Amendment in 1974. This amendment ended the common phrase of “plausible deniability” by expressly requiring the President to first approve of all covert operations “as necessary to the national security of the United States” and disclosure to numerous Congressional committees.[92] However, one flaw that remained was that no standard for what was “necessary for national security” was established.[93] This loophole, even after extensive scrutiny,[94] enabled the President to once again establish foreign authority vis-à-vis the constitution.
As the CIA itself notes, Executive Order 12,333 “clarifies ambiguities of previous [Executive O]rders[96] and sets clear goals for the Intelligence Community in accordance with law and regard for the rights of Americans.”[97] It provides the current guidelines for the conduct of intelligence activities and the composition of the IC. Because Executive Orders are routinely modified and amended or adopted anew by each successive President, the only way to determine the real impact of a policy change is to examine legal changes between orders.
First, President Carter’s Executive Order 12,036 signed into law on Jan. 24, 1978 defined covert activities as “activities conducted in support of national foreign policy objectives abroad which are designed to further official U.S. programs and policies abroad.”[98] However, Section 3.4(h) of Executive Order 12,333, excludes the emphasized portion.[99] The implication from this change is either that the words were extraneous, that covert activities can now be used to further unofficial U.S. goals, that covert activities can now be used to further anyone’s (namely another State or entity’s) programs and policies abroad, or that by this Executive Order change the President is trying to authorize programs that had implications that were not “abroad.”[100]
Second, the role of the Department of Justice is also changed considerably between the orders. While the Ford and Carter Orders[101] included the DOJ in the covert action decisional process, 12,333 excludes the Attorney General from any formal decisional role, but now is given a greater oversight function.[102] The outcome of Carter’s Executive Order, however, is nevertheless intact as it was essentially replaced by the Intelligence Oversight Act of 1980.
Third, Executive Order 12,333 made clear that the idea of self-governance was again invoked. In other words, Reagan began to reestablish the very imperialist nature of the presidency that he curbed while on the Rockefeller Commission. Indeed, whereas 1975 was the “year of the intelligence” with an unleashed CIA, 1985 was the “year of the spy,” with twelve cases of treasonous activity against the United States.[103] The order tried to get a leash on the President’s once undoubted national security powers of the IC. As a result, 12,333 and the course that Reagan took the CIA and the IC on through his term indicate how, through media reaction and social/political context, although the laws may change, the attention to them diminishes.
In addition to the CIA legal triad of the National Security Act, the CIA Act and 12,333, other acts and executive orders have been important to the functioning of the CIA. The Intelligence Identities Protection Act,[104] for instance, imposed criminal penalties on those who reveal the names of cover intelligence personnel. In 1984 the CIA’s Information Act amended the FOIA Security Act of 1947 to regulate public distribution of information held by the CIA.[105]
As initially noted, the focus of this
paper is limited to the legal foundations of the CIA. However, it would be grossly in error to not mention the four
sister DOD Intelligence Agencies and the respective divisions of the Armed
Services. Indeed, the National Security
Act of 1947 was primarily a mechanism to create a unified Armed Services. It established the Department of Defense,
hence replacing the Departments of War and Navy. It created the Departments of Air Force, Army and navy under the
head of the secretary of Treasury and created the Joint Chiefs of Staff (JCS). Furthermore, it created the National
Security Counsel “to advise the President with respect to the integration of
domestic, foreign and military policy relating to national security.”[107] Although the Armed Services naturally
created intelligence divisions, operating almost exclusively in times of war
abroad, the Cold War spawned a number of specialized intelligence agencies,
such as the NSA and NRO.[108] For instance the DIA, established in 1961,
is now entirely a combat support agency, and is the most senior military
component of the IC.
The most recent addition to the IC is that of NIMA on Oct. 1, 1996. Again, by its own NIMA Act, the role of the intelligence community was legally secured prior to any actions. This, as the last example of institutional competence, secures the reality that the modern era of intelligence since the 1970’s can maintain intelligence security while being authorized by law.
C) Other
Executive Branch Intelligence Agencies[109]
On the Executive side, intelligence agencies have received considerably less scrutiny and public attention. The legal imprimatur for each rests in their respective enabling acts. For instance, the Department of State’s Bureau of Intelligence and Research was established immediately following WWII in 1946. The Department of Treasury Office of National Security was established in 1961 but was not invited onto the National Foreign Intelligence Board until 1977. THE FBI’s involvement has similarly had a lengthy but quiet history, namely in domestic uses of counterintelligence – limiting its role to “spying on the spies.” Few cases such as Aldrich Ames[110] have brought this intelligence division to the forefront of public attention.
On the other hand, the Department of Energy has had a strong but quiet role in the intelligence community since before the National Security Act. This is not surprising, of course, since the then Atomic Energy Commission (AEC), represented on the intelligence Advisory Board in July of 1947,[111] was responsible for the U.S. nuclear program from its Manhattan Project days. After much evolution and bureaucratic reorganization through the Atomic Energy Act of 1954, since New York Times Co. v. United States (the “Pentagon Papers” case), when the Times published nuclear secrets the Department has received less attention. However, when, in 1998, it was learned that massive amounts of U.S. nuclear secrets continued to leak from the Los Almos Nuclear Weapons & Research Lab in California, the Department again came under scrutiny. This resulted in one of the few times that the President’s Foreign Intelligence and Advisory Board (PFIAB) has had both a substantive and public advisory role. In the Report issued, the PFIAB described the secret filtration and lax security of the Department of Energy’s weaponry labs and made recommendations for the DOE’s intelligence and security operations.[112]
What is clear is that although these non-DOD intelligence agencies have played lesser-known roles, they respectively play important roles as sisters to the CIA and within the larger IC. However, because the National Security Act limits all covert collection to the CIA, the question and inquiry into the legal foundations and rule of law for these sister agencies has all but disappeared. This is not to say, however, that the U.S. Intelligence Community and the CIA have always adhered to the substantive laws and mandates required of them.
D) Intelligence &
Domestic Activities – Abused Authority & Illegality
There is no doubt that at times member agencies of the IC have exceeded their legal authority, both the letter and spirit of the law, and both internationally and domestically.[113] Perhaps the most unbiased accounting of these activities was outlined by the U.S. Commission on CIA Activities Within the United States, chaired by Vice-President Nelson Rockefeller, in its report to the President in 1975.[114] It is particularly useful in determining if, and to what degree, the CIA and IC agencies acted outside of the enabling statutes in the first 25 years of modern intelligence.
The Commission pointed out that nowhere in the National Security Act of 1947 did the word “foreign” appear in the grant of authority[115] and recommended amendments and executive orders to clarify some ambiguity in the statute. In addition the Commission recognized that the 1947 Act was only one part of the legal puzzle. Among those provisions directly breached included unconstitutional violations of the First Amendment’s freedoms of speech, press, and of peaceable assembly, and the Fourth Amendment’s prohibition against unreasonable searches and seizures.[116]
1.
Abuses of Power in “Foreign” Affairs?
Although the Rockefeller Commission indicated the CIA need not limit itself to foreign affairs, there were potentially hundreds of violations of the letter of both domestic and international law, as well as clear violations of the spirits of these laws.[117] When the results of the unbridled scope of the imperialist presidency were recognized and publicized, and indeed the political atmosphere was right, the public reined in the Presidency.
2.
Domestic Abuses: CHAOS and Electronic Intercepts[118]
Perhaps one of the most surprisingly unconstitutional and illegal actions by the intelligence community occurred at the height of the red scare. According to the Rockefeller Commission,[119] the CIA began Operation CHAOS[120] in February of 1953. With the cooperation of the FBI and other agencies, the CIA continued through February 15, 1973 an extensive mail intercept program of internationally sent mail.[121] Mail sent to Communist countries, especially the Soviet Union, was segregated, opened, photographed and distributed to the CIA and FBI.[122] Although the Truman Doctrine and the Internal Security Act of 1950 were offered as the justification for these activities, it was grossly inadequate.[123] “By 1959 this program involved the opening of 13,000 letters a year.”[124] Even in the last year, nearly 5,000 selections were made based on the “watch list.”[125] In total, estimates of spied on outgoing and incoming mail from the Soviet Union, and indeed other Communist oriented countries, range into the millions of letters and packages.[126] In fact, evidence also pointed to entirely domestic mail opening as well.[127] At the end, the CIA in its operation CHAOS had files on 7,200 individuals, 1,000 organizations and a watch list of nearly 300,000 people.[128] Other agencies involved, including the FBI, IRS Special Services, Secret Service, and Army intelligence, also gathered massive files and watch lists.[129]
Perhaps the only thing that stopped the operation was the happenstance discovery of the operation by the New York Times.[130] Considering that the National Security Act of 1947 expressly precluded the CIA’s involvement in “police, subpoena, law enforcement powers or internal security function,” any CIA involvement was outright illegal.[131] Indeed, following the exposure, numerous courts affirmed the illegal nature of the former intelligence gathering activities.[132]
As for other intelligence agency involvement, such as the FBI which would have had proper jurisdiction,[133] via 28 U.S.C. § 533,[134] they needed only to obey the statute. However, without proper cause to suspect violation of federal law their actions were also nonetheless illegal under either the Act,[135] United States v. United States District Court,[136] or Zweibon v. Mitchell.[137] In similar instances of “intelligence” wiretaps authorized in the name of “national security,” retrospective Congressional oversight discovered numerous cases of non-authorized wiretaps, without any evidence of a security threat, special permission from the Attorney General, or a court order.[138] Just six months after beginning the investigation, the Rockefeller Commission issued its Report on June 4, 1975.[139] The fears of Justice Brandeis, in an insidious encroachment of liberties in the name of intelligence gathering and security, had come full circle.[140]
With such inflammatory results, both the Senate and House, in addition to the President’s Commission, established respective committees to investigate and study the nation’s intelligence activities.[141] Following their investigations in the 1970’s, the Senate established a Permanent Committee on Intelligence on May 19, 1976 and the House followed on July 14, 1977 with its own amid a flurry of legalistic reorganization.[142] Thus, it appeared as though when the powers of the national government were indeed balanced, and separated, the fundamental precepts of the rule of law – constitutionality, legislatively, and judicially – were secured.
A)
Executive Oversight
and Advisory Boards[143]
The Executive has command of several oversight and advisory boards to ensure complaince with Congressional and Judicial mandates: the NSC, Presidents Foreign Intelligence Advisory Board (PFIAB), and the Intelligence Oversight Board (IOB). Currently the PFIAB operates under Executive Order 12,863, signed by President Clinton on September 13, 1993.[144] “For nearly four decades the PFIAB has acted as a nonpartisan body offering the President objective, expert advice on the conduct of U.S. foreign intelligence.”[145] The PFIAB is maintained within the Executive Office of the President and reviews the performance of all government agencies engaged in the “collection, evaluation, or production of intelligence or in the execution of intelligence policy.”[146]
Second, the NSC is the highest Executive Branch entity that provides review, guidance, and direction in conducting “all national foreign intelligence and counterintelligence activities.”[147] Additionally, the President has control from the IOB which was initially established by President Ford in Executive Order 11,905.[148] More narrow than the PFIAB, the IOB is an entity within the walls of the White House and in 1993 was made a standing committee of the PFIAB.[149] The IOB:
is
charged primarily with preparing reports of intelligence activities that the
IOB believes may be unlawful or contrary to Executive Order or Presidential
directive. The Board may also refer
such reports to the Attorney General.[150]
Until the present, excluding the NSC and the President’s other security advisors, the IOB and PFIAB have served at the will of the President,[151] and have had limited practical authority. Indeed, the only use of the PFIAB has had has been with regard to the investigation into the Department of Energy’s intelligence flops and Executive Order 12,863 reevaluating the role of the CIA, albeit affirming its role.[152] Thus, any executive oversight truly continues to rest in the hands of the NSC and Executive Office of the President.
B) House and Senate
Committees on Intelligence
In addition to Presidential oversight, before the establishment of the permanent intelligence committees, Congress did have oversight responsibilities vested in the Armed Services Committees of the House and Senate, but never exercised the “oversight” envisioned today. Indeed, it was not until perhaps 1980 did Congress begin to extensively review funding when the Intelligence Oversight Act established the current oversight structure, making the CIA subject to the exclusive review by the SSCI and HPSCI. Ultimately, however, Congress again exhibited the deferential role it plays in national security and intelligence activities when the proposed National Intelligence Reorganization & Reform Act of 1978 was killed in Committee.[153] The proposed bill would have (a) substantially amended the NSA of 1947, giving the Executive less ability to later expand his power, (b) incorporated the Hughes-Ryan Amendment and Executive Order 12,036, (c) added the DEA to the IC, (d) given more direct veto oversight to the Attorney General, and (e) prohibited the use of covert operations unless they were for “official United States foreign policy.”[154] However, in light of the failure of the bill and Reagan’s Executive Order omitting those very words, it does suggest that Congress impliedly authorized the President, in defeating the bill, wanted the Executive to have a strong dominance in the operational level of intelligence affairs.[155]
The ultimate question is what would
happen next time?[156] The next time that a perceived national
security fear instigates itself, will either the Executive revert to an
imperialist presidency or will the Congress fail to maintain oversight? One of the principle problems is that under
the constitutional provisions granted to the President in foreign policy, and
the ability of the Executive to create executive orders so long as they are
“related” to statutory authority,[157]
the President has exclusive ability to enact law one day and rescind it the
next. While some acts are expressly
prohibited by legislation,[158]
so long as the President complies with reporting requirements to the two
congressional committees,[159]
his potentially tyrannical authority may have been curtailed,[160]
but it is not extinct.[161]
One recommendation suggested is that an
executive action in foreign affairs should, similar to the War Powers
Resolution, be subject to a Congressional veto power in some instances. However, in light of INS v. Chadha,[162]
which stated a one-house veto is unconstitutional as a violation of
bicameralism[163] and
presentment[164] clauses of
the constitution, any such veto and indeed the conceptual teeth of the War
Powers Resolution[165]
is legally in doubt.[166] For that reason alone, trying to continually
balance who should govern a particular foreign policy decision or agenda is a
hopeless debate. Instead, because of
the oversight functions given to Congress, and indeed the executive’s own
PFIAB, the Congressional power of the purse should be a sufficient legal
mechanism to hold action at bay.
Perhaps more than anything, when faced
with outside pressures the history of the United States intelligence community
exactly demonstrates the fears that the framers had in establishing checks and
balances of power. It also shows that,
unbridled tyranny can result, but when checked as the IC was in the 1970’s, a
nation can be secure in both its rule and spirit of spirit of law, and yet,
secure from external threats. It shows
that the constitutional model is a healthy tool, that when followed, preserves
liberties and the social good.
What must be crystal clear is that, perhaps surprisingly, the legal foundations for the U.S. Intelligence Community do exist and have existed since each agency’s respective creation. Why? Because the United States is governed by a system and rule of law. Where agencies have deviated from their constitutional authority or the authority granted to them in enabling acts or Executive Orders, they have been curtailed, reprimanded and reorganized. Thus, despite the criticisms, the IC is better able to preserve the fundamental liberties of U.S. citizens by because it is ultimately governed by the rule of law through constitutional, legislative, and executive mandates.
* Dan Pinegar is a Juris Doctorate candidate of the University of Iowa class of 2001. Copyright 1999-2001.
[1] Olmstead v. United States (Brandeis, dissenting), 277 U.S. 471, 479 (1928)(describing fears in the context of alleged unconstitutional wiretapping charges); see also Victor Marchetti & John d. Marks, The CIA and the Cult of Intelligence 243 (1974)(same; Marchetti, like most CIA authors, is an ex-CIA officer).
[2] “The intelligence community is a group of 13 government agencies and organizations that carry out the intelligence activities of the U.S. Government.” Central Intelligence Agency, U.S. Intelligence Community (last modified June 15, 1998) <http://www.odci.gov/ic> (hereinafter “IC Webpage”). The particular agency and characteristics of each is described infra Section I and II.
[3]
Stafford T. Thomas, The U.S.
Intelligence Community, 85 (1983).
[4] See Arthur M. Cox, The Myths of National Security, 119-149 (1975) (describing only a sample of the level of secrecy that was kept from the media and hence the public preceding the intense scrutiny in the 1970’s). Of course, the United States is not the only country that has maintained a shield of secrecy. See David Vincint, The Culture of Secrecy, 1832-1998 (1998) (describing the secrecy that the British government has maintained in its history and, in particular, a similar clandestine operation to that of Operation CHAOS, discussed infra, of British letter and mail opening operations).
[5] This is the general utilitarian philosophy of Jeremy Bentham, and not John Stuart Mills. In this sense, national security and the national welfare are inseparable. To take it one step further, Thomas Hobbes argues that national security is merely an extension of the security or safety value that is essential in a society characterized by constant threats. Thus, Hobbes argues that “safety is the supreme law and overriding principle of any nation” and hence, national security is of intrinsic importance. Squirrelkillers, Lincoln-Douglas Debate materials, at 80, 87-88, 89-90 (1991-1994)(on file with the author); see Thomas Hobbes, The Citizen (reprinted by Appleton-Century-Crafts, New York, 1949)(discussing same); Thomas Hobbes, Leviathan (reprinted by the Liberal Arts Press, New York, 1958)(discussing same).
[6] It is a relatively recent phenomenon for the authority and legitimacy of the IC and intelligence professionals to be questioned. “Thus, until the Vietnam War era, the intelligence professionals ... were generally lionized and regarded as legitimate and vital agents of the American government.” Id., at 81. However, if scrutiny publicly does not exist, private admonitions in the form of Freedom of Information (FOIA) requests bombard all intelligence agencies. See Cox, The Myths of National Security, infra note 4 and accompanying text (describing accused illegal conduct).
[7] See Scott D. Breckinridge, The CIA and the U.S. Intelligence System 104-104 (1986) (indicating that between 80 to 90 percent of all intelligence collected comes from overt, or non-secret, means such as merely analyzing a country’s own major newspapers, radio and television broadcasts). Notwithstanding this actual dominance on overt collection, covert or clandestine intelligence collection is essential. “The United States cannot forego clandestine human collection and classic espionage and expect to maintain the same quality of intelligence on matters of the highest importance to our national security.” Id., at 108 (citing Church Committee Report, infra note 142, at Book I at 437); see generally id. at 108-127 (describing clandestine collection). Breckinridge served with the CIA for over 26 years and represented the CIA before the 1975-1976 congressional investigating committees (discussed infra Section III).
[8] After personally working in the Senate as a staff member, this author’s numerous contacts describe even the ornate cloak that shields the Senate Select Committee on Intelligence (SSCI). For instance, the committee room itself has its own elevator that can only be accessed through a secret tunnel on the Hill. Guards are stationed throughout the tunnel, at the base of the elevator and immediately outside of the committee room. For instance, among many other protective measures (such as leaded walls, no windows and a direct secure line to the President), the room is electronically protected against eavesdropping from any source not within the confines of the room itself. Furthermore, because of the simply classified nature of the discussions, if any report or record of committee meetings is made, there is usually only a classified version, although in some instances there is also a second public version. This makes assessing the nature of the oversight inherently difficult.
[9] See President's Commission on CIA Activities within the U.S., Report to the President 5 (June 1975)(hereinafter the “Rockefeller Commission” and the “Rockefeller Report”)(noting in its introduction that “the mere invocation of the ‘national security’ does not grant unlimited power to the government”); Arthur M. Cox, The Myths of National Security (1975)(basing his book on the idea that a nation cannot be secure where its government is willing to forgo some liberties some of the time to protect others); but see W. Andrew Axline, The Global Community, 128 (1972)(“We force our chosen leaders to subordinate all their previous values to the supreme value of protecting us and advancing the collective interest.”).
[10] The scope of this paper is limited to post-1945 for the simple reason that our modern intelligence community was born out of WWII social, policy and legal developments. See infra Section I(a) (discussing same).
[11] During the author’s search for information on the CIA there was an unhealthy dearth of information about this lead intelligence agency. However, a great void was also present with material on each of the other agencies, especially the NSA.
[12] There are a variety of intelligence-related incidents that have been by no means “incidentally” publicized or criticized as illegal conduct. Although these are mentioned, infra, they will not be discussed to the level of detail that previous authors have analyzed them.
[13] See Fred Branfman, The President’s Secret Army: A Case Study – the CIA in Laos, in The CIA File 46 (Robert L. Borosage and John Marks, eds. 1976)(describing the operations of the CIA in Laos during 1962-1972 which came to light in the Senate Armed Service Hearings, July 2, 1973); John Prados, Presidents’ Secret Wars (1996)(describing the role of the CIA as the personal spy agency for the President); Christopher Andrew, For the President’s Eyes Only (1995)(narrating intelligence and spy operations during the tenures of fourteen presidents).
[14] Over the past 50 years there have been several incidents of outcry rising to the attention of the national press. See, e.g., Morton H. Halperin, et al., The Lawless State: The Crimes of the U.S. Intelligence Community (1978)(describing many instances of alleged illegal activity of the CIA and other intelligence agencies); see also Thomas, The U.S. Intelligence Community, supra note 3, at 77 (1983)(stating that when secret events become public knowledge the CIA is usually subject to charges of impropriety and/or ineptitude, due in part to increased investigative journalism). It is interesting to note that Halperin himself would also be a part of the public outcry, after being a Deputy Assistant Secretary of Defense and senior staff member of the NSC, when, in 1980, he lost a Freedom of Information Act suit against the CIA. See Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980)(dismissing FOIA case for lack of standing and as a political question).
[15] Congress has increasingly forced CIA accountability following public demands. See infra Section II(A)(3)(describing reforms in the 1970’s); see also David E. Colton, Comment, Speaking Truth to Power: Intelligence Oversight in an Imperfect World, 137 U. Pa. L. Rev. 571, 583 (1988)(describing congressional actions in the 1970’s).
[16] IC Webpage, supra note 2.
[17] There is always the possibility that other secret intelligence agencies exist. Indeed, the National Security Agency, born in the depths of the Cold War was not unclassified for over two decades.
[18] See id. (detailing the components of the intelligence community with links to their respective agency webpages); Central Intelligence Agency, (last visited on September 5, 1999) <http://www.odci.gov> (hereinafter the “CIA Webpage”); see also Thomas, The U.S. Intelligence Community supra note 3, at 23-40 (describing the intelligence community structure and community components).
[19] IC Webpage, supra note 2.
[20] Id.
[21] Id.; see supra Section II (detailing further each member’s role within the IC).
[22] Id., infra note 2.
[23] The DCI is head of both the CIA and the entire IC, however, the DCI is generally described only in the broader relationship to the IC.
[24] Indeed there are even Biblical references to the profession of spying. See Harry P. Jeffers, The CIA – A Closer Look at the Central Intelligence Agency, at Prologue (“And Moses sent them to spy out the land of Canaan, and said unto them, Get you up this way southward, and go up into the mountain: ‘and see the land, what it is; and the people that dwelleth therein, whether they be strong or weak, few or many.’” Numbers 13; 17, 18.); see also Sun Tzu, The Art of Warfare (NY: Oxford University Press, 1963)(outlining the first “classic” treatment of intelligence by military strategist Sun Tzu, whose interests and thoughts are remarkably Machiavellian)(cited in Thomas, The U.S. Intelligence Community supra note 3, at 7); Francis Dvornik, Origins of Intelligence Services (1974)(discussing origins from ancient empires, Persia, Greece, Rome, Mongol Empires and others).
[25] In fact, in a letter to Col. Elias Dayton on July 26, 1777, President Washington confirmed that “the necessity of procuring good intelligence is apparent and need not be further urged. All that remains for me to add, is that you keep the whole matter as secret as possible. For upon secrecy, success depends in most enterprises of the kind, and for want of it, they are generally defeated, however well planned and promising a favorable issue.” Jeffers, supra note 24, at 61.
[26] See Sneakers, MCA Universal, 1992 (stating in movie monologue that:
The world isn’t run by weapons any more, or energy or money, but by little ones and zeros, little bits of data. ... It’s not about whose got the most bullets, but who controls the information, what we see and hear, how we work and think. It’s all about the information.).
[27] The lobster-information analogy is the author’s own creation.
[28] “The UN Security Council consists of fifteen members: five permanent seats (United States, Russia, Great Britain, France, and the People’s Republic of China) and ten seats assigned on an elected basis every two years.” Congressional Quarterly, Inc., Powers of the Presidency, 184, 2nd ed., Washington, D.C., 1997.
[29] The G7 summit is a conglomeration of the world’s industrial superpowers. The members include the United States, Japan, Germany, France, Great Britain, Italy and Canada. Id. at 271.
[30] See infra note 2 (“Who We Are and What We Do” (last visited on September 5, 1999)<http://www.odci.gov/ic/functions.html>.
[31] See also Daniel G. Pinegar, Honors Thesis, “Warlords and Terrorists on the Information Super-Highway: the Most Dangerous Uses of Information Warfare,” University of Iowa: Iowa City, 1998 (describing how critical infrastructures outlined in the President’s Commission on Critical Infrastructure Protection will necessarily need to be integrated into U.S. national security)(thesis on file with the University Honors program or on the author’s webpage, Dan Pinegar, “Information Warfare” (last modified Nov. 1, 1999) <https://www.angelfire.com/ia/pinegar/infowar.html>).
[32] 80 to 90 percent of all estimated information that comes into the CIA is gathered through overt and not covert intelligence. Breckinridge, The CIA and the U.S. Intelligence System, supra note 7, at 104-104. Thus, the IC spends most of its time sifting, sorting and scrutinizing the incoming data. See David E. Colton, Comment, Speaking Truth to Power: Intelligence Oversight in an Imperfect World, 137 U. Pa. L. Rev. 571, 579 (1988)(“Intelligence is more than information; it is the product of processed information.”).
[33] See CIA Fact Book on Intelligence (hereinafter “Cia Fact Book”), 30 (“And Ye shall know the truth and the truth shall make you free.” John, VII-XXXII. Inscription on the marble wall of the main foyer at CIA headquarters in Langley, Virginia.).
[34] Gathering information occurs through a variety of collection techniques. These include human sources, photo and image technologies, signals sources such as radio, satellite, and communicative relays, and through covert collection. See Colton, supra notes 15, 32 (describing further three intelligence activities of collection, counterintelligence and special activities).
[35] IC Webpage, supra note 2. Other Congressional committees should not be overlooked or underestimated in their influence and impact on intelligence activities. These include the House and Senate Armed Services Committees (HASC and SASC) and the House and Senate Appropriations Committees (HAC and SAC). See Center for the Study of Intelligence, (last visited on September 11, 1999) <http://www.odci.gov/csi/monograph/lawmaker/intro.html>
(discussing same).
[36] See generally Congressional Quarterly, Inc., Powers of the Presidency, 2d ed., Washington, D.C. (1997)(discussing in detail the panoply of presidential powers from a historical and legal perspective).
[37] U.S. CONST. art II, § 1, cl. 1.
[38] Id. at art. II, § 2, cl. 2.
[39] Id.
[40] Id. at art. II, § 2, cl. 1.
[41] Id. at art. II, § 3; see also Cunningham v. Neagle (In re Neagle), 135 U.S. 1 (1890)(finding that under Article II, §3 the take care clause enables the President to enforce all “laws” – including executive orders).
[42] See generally Marshall Silverberg, The Separation of Powers and Control of the CIA’s Covert Operations, 68 Tex. L. Rev. 575, 584 (1990)(discussing these granted executive powers more extensively in light of the framers and theorists).
[43] Marshall Silverberg, The Separation of Powers and Control of the CIA’s Covert Operations, 68 Tex. L. Rev. 575, 584 (1990)(citing L. Henkin, Foreign Affairs and the Constitution 43 (1972)).
[44] Id.
[45] See id. at 586 (describing President Washington’s proclamation that the U.S. would remain neutral in the war between Great Britain and France (citing 1 W. Goldsmith, The Growth of Presidential Power: A Documented History 56 (1974))).
[46] See id.
[47] 299 U.S. 304 (1936)(citing Chief Justice John Marshall supporting the position that, “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations” should not be encroached).
[48] See id.
[49] Id. However, if the President acts in an area of foreign affairs that the Congress has remained silent, or manifested a contrary intent, the President’s powers may be less broad. See Youngstown Sheet & Tube v. United States, 343 U.S. 579 (1952)(J. Jackson concurrence)(emphasizing that where the Congress explicitly rejected a previous steel plant seizure, the President’s actions fell outside of the “twilight zone” of executive power); see also Dames & Moore v. Regan, 453 U.S. 654 (1981)(recognizing an “implied acquiescence” by a long Congressional history in similar presidential conduct sufficient to tip the balance in finding that the President acted within his constitutional authority in obtaining the release of American hostages abroad).
[50] The counter-argument is that no limitations have been imposed on Presidential powers because the President was never granted the former “un-limited” powers in the constitution.
[51] 343 U.S. 579 (1952). This may suggest that where intelligence agencies are permitted to investigate persons suspected of being foreign spies located within the United States notwithstanding, that should Congress act to oppose such action, the intelligence agency must legally abide by their decision and hence essentially ignore an executive order to the contrary by having it ruled unconstitutional.
[52] 50 U.S.C.A. § 1541, 87 Stat. 555, P.L. 93-148 (Nov. 7, 1973). The War Powers Resolution was adopted by Congress during Vietnam over President Nixon’s veto in an attempt to curb Presidential use of armed forces without a formal congressional declaration of war, thereby usurping Congress’ constitutional war-making powers. The Resolution provides in pertinent part that the President “in every possible instance shall consult with Congress before introducing the United States armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated” within 48 hours of doing so. Id. (emphasis added). Perhaps more importantly, §5(b) provides that within 60 days of this report, the President must terminate the use of armed forces subject to two exceptions. Id. However, although the Resolution has imposed limits on executive powers over foreign affairs generally, it does not arguably govern intelligence agencies. This is because intelligence operations are usually not considered “armed forces” or conducted within “hostilities.”
[53] See supra notes 50-52 and accompanying text.
[54] The modern intelligence era was born out of WWII and later the developing Cold War vis-à-vis the National Security Act of 1947, the CIA Act of 1949, and indeed the restructuring of the CIA in 1951 and 1952. See infra Section II.
[55] See generally Tyrus G. Fain, The Intelligence Community; History, Organization, and Issues (1977) (describing in great detail the history of the IC and CIA, other components of the IC, and policy objectives of each agency); Jeffrey Richelson, The U.S. Intelligence Community (1989) (detailing the national intelligence infrastructure by agency, department and activity, including foreign intelligence services).
[56] This is, not to suggest of course, that prior to WWII the United States lacked an intelligence structure. The first evidence of U.S. spying occurred on July 26, 1777 in a letter between President Washington and Col. Elias Dayton. Indeed, secrecy has existed from the birth of our nation in that the constitutional convention records were not published until 1820. See Neutrality Act, 18 U.S.C. §960 (1994)(giving United States control over foreign affairs in 1794); the Logan Act, 18 U.S.C. § 953 (1994)(preventing citizens from taking foreign affairs into their own hands in 1799); the Hostages Act, 22 U.S.C. §1732 (1982)(used to justify the Canadian Caper hostage release without disclosure under the 1868 Act). See also Appendix.
[57] The OSS was established in June, 1942 by President Franklin D. Roosevelt when he widened the scope of the Coordinator of Information (COI) that was only established in July, 1941. JEFFERS, supra note 24, at 15. In fact, since 1929 when the State Department’s code-breaking section, “the black chamber,” was closed down by then Secretary of State Stimson, there was no official intelligence service outside of the small units within the armed services. Id. Thus, Roosevelt mandated the OSS to collect and analyze strategic information required by the Joint Chiefs of Staff and to conduct special operations. CIA Fact Book, supra note 21, at 6-7. Although a common misunderstanding is that the OSS was merely the predecessor to the CIA, it never “received complete jurisdiction over all foreign intelligence activities.” Id. Indeed, it was the FBI in the early 1930’s that conducted intelligence operations in Latin America. Id. However, the OSS was disbanded in October 1945 under Executive Order 9621 and transferred its functions to the State and War Departments. Id.
[58] P.L. 80-253, July 26, 1947 (Army-Navy Unification Act); 50 U.S.C. ch. 343, §§ 401-405, 413, 61 Stat. 495 (as amended).
[59] 50 U.S.C. ch. 227, § 403 (June 20, 1949)(as amended by P.L. 106-58).
[60] See generally Gary Lawson, Federal Administrative Law (1998) (discussing in Chapter I and Chapter II agencies and the administrative state).
[61] Indeed, there are many aspects of the CIA that have been strictly legislated. See Executive Order 10,111 (1950)(defining the composition of the CIA Seal); Executive Order 10,100 (1950)(“Regulations Relating to the Granting of Certain Allowances by the DCI.”); Executive Order 10,805 (1959)(“Designating the CIA as Excepted from Certain Provisions of the Government Employees Training Act.”); Executive Order 10,899 (1960)(authorizing the “Communication of Restricted Data by the CIA”).
[62] 87 Stat. 555, 46 FR 59941, Dec. 4, 1981, Executive Order 12,333: “U.S. Intelligence Activities” (described as the current legal mechanism governing the details of the IC).
[63] For a detailed historical and legal timeline from WWII to the 1990’s, see Appendix, “U.S. Intelligence Law Timeline (Post-WWII),” used during presentation.
[64] President Harry S. Truman’s Executive Letter of 22 January 1946 (establishing the NIA and Central Intelligence Group); CIA Fact Book, supra note 33, at 6-7. Although the group began coordinating departmental intelligence, it merely supplemented and did not supplant existing services. Id.; see also id., at 4-5 (describing the chronology of the CIA through 1988).
[65] CIA Webpage, supra note 18 (detailing early agency history).
[66]
See William
M. Leary, The Central intelligence Agency: History and Documents
(1984)(describing in detail the early CIA history and major legislation and
supporting documents, directives, and letters of the CIA).
[67] Supra note 58.
[68] See also Charles D. Ameringer, U.S. Foreign Intelligence: The Secret Side of American History, at 185-223 (1990)(detailing further the make-up and organization of the U.S. Intelligence Community).
[69] CIA Fact Book, supra note 33, at 6-7. The Act became effective on September 18, 1947. Many of the authorizations to the CIA closely followed the original 1944 Donovan Plan. Id. An amendment of April 4, 1953 allowed the President to appoint the Director of the NSC and the DCI subject to confirmation by the Senate, but at no time may both positions “be occupied simultaneously by commissioned officers.” Id.
[70] Id. It was the 1949 Act that permitted the Agency to “use confidential fiscal and administrative procedures” to maintain the Agency’s secrecy. Id.; see also Richardson v. United States, 418 U.S. 166 (1974)(describing a case of a citizen’s failed attempt to gain access to bypass Congress’ statutory refusal to disclose the CIA’s expenditures due to, among other reasons, lack of standing as merely being a taxpayer).
[71] Jeffers, supra note 24, at 20.
[72] Donald M. Snow, National Security, 102 (1995)(“The most important formative act was the National Security Act of 1947. That landmark piece of legislation made several fundamental structural changes...[which] has defined the process ever since.”).
[73] Supra note 58.
[74] Jeffers, supra note 24, at 20-21 (quoting the text of the Act in full).
[75] Id.
[76] Id., at 22 (noting this apparent responsibility to provide all other necessary and proper functions in the CIA’s Plans Division).
[77] National Security Act of 1947, 50 U.S.C. § 403-3(d)(1994)(P.L. 80-253):
In
the Director’s capacity as head of the CIA, the Director shall –
(1) Collect intelligence through human sources and by other appropriate means, except that the Agency shall have no police, subpoena, or law enforcement powers or internal security functions.” ...
(3) “...provided that the agency shall have no police, subpoena, law enforcement powers, or internal security functions...” ...
(5) Perform such other functions and duties related to intelligence affecting the national security as the President or National Security Counsel may direct.
[78] The requirement that the “President’s power to issue an [Executive O]rder stem from either an act of Congress or from the Constitution itself” would later be affirmed in Youngstown, 343 U.S. at 579, 585 (1952).
[79] John Ranelagh, The Agency: The Rise and Decline of the CIA, 193 (1986).
[80] Prior to 1953 there was no covert oversight mechanism. The first, in 1953 by NSC Directive 40, established the “40 Committee” to review all covert operation proposals. This was the first time that even the Office of the President became formally involved. Currently, only the DCI has this mandatory role.
[81] CIA Act of 1949, June 20, 1949, 50 U.S.C. ch. 227, §403 (as amended by P.L. 106-58).
[82] Houston has been said to be “the father of intelligence law.” CIA, Studies in Intelligence, Lawrence Houston (1974)(speaking at the presentation to Houston of the National Security Medal and CIA’s Distinguished Intelligence Medal on February 1, 1974 by then Director William Colby).
[83] Ranelagh, supra note 79, at 194.
[84] Id. Indeed, this is the mechanism that later allowed for the publicly disclosed $700 toilet seat.
[85] See id.
[86] Id., at 193-194. However, the Act does not permit Congress to regulate clandestine activities and its failure to regulate the CIA for the first thirty years is a separate matter. Id.
[87] See infra Section II(D) (discussing violations of United States and international law).
[88]
See Ludweell
Lee Montague, General Walter Bedell Smith as Director of Central Intelligence (1992)
(describing the CIA between 1950 and 1953).
[89] See Appendix.
[90] New York Times Co. v. United States, 403 U.S. 713 (1971) (the “Pentagon Papers case”).
[91] United States v. Robel, 389 U.S. 258, 264 (1967); see also Farkas v. Texas Instruments, Inc., 375 F.2d 629, 632 (5th Cir. 1967)(indicating that executive orders have the force and effect of law but must be “related” to a statute); United States v. United States District Court, 407 U.S. 297 (1972)(rejecting the domestic security justification for surveillance without a court order).
[92] The Hughes-Ryan Amendment was an Amendment to the 1961 Foreign Assistance Act. See also Appendix.
[93] Id.
[94] See infra Section III and Appendix (listing other legislative inquires, specifically the Clark-Tunny amendment to the Arms Export Control Act in June of 1976; the Foreign Intelligence Surveillance Act of 1978 requiring a court order if within the United States even it was for national security).
[95] See generally, Boyd M. Johnson, III, Executive Order 12,333: The Permissibility of an American Assassination of a Foreign Leader, 25 Cornell Int’l L.J. 401 (1992); Sherri J. Conrad, Executive Order 12,333: Unleashing the CIA Violates the Leash Law, 70 Cornell L. Rev. 968 (1985); Stephen Dycus, et al. (eds.), National Security Law (2nd ed. 199X).
[96] Executive Order 12,333 is only the latest in a series of Orders that have consequentially replaced previous Orders governing the CIA. See infra note 132 and accompanying text (listing series of Executive Orders).
[97] CIA Webpage, supra note 18.
[98] Id. (Emphasis added.)
[99] Id.
[100] All are plausible readings. Only the fourth interpretative comparison I make between the Orders is subject to any real scrutiny. The argument does exist, however, that where there is a connection to international espionage, foreign intelligence, or other national security threats, those persons can be pursued from foreign into domestic territory. However, in light of the prior caselaw interpreting the National Security Act, such a reading assumes too much.
[101] See Executive Orders 11,905 and 11,906 (Feb. 18, 1976)(Ford), aff’d Executive Order 11,985 (1977), aff’d Executive Order 11,994 (1977); aff’d 12,036 (Carter).
[102] Compare id. with Executive Order 12,333 (Regan).
[103] See “Year of the Spy,” N.Y.Times, Dec. 1, 1985.
[104] P.L. 97-200 (23 June 1982).
[105] CIA Fact Book, supra note 33, at 5; CIA Webpage, supra note 18. President Reagan signed the Act on October 15, 1984. Id.
[106] See generally IC Webpage, supra note 2.
[107] Id.
[108] Although the NSA, located in Maryland, is the largest state employer, little is known about this super-spy network. See, e.g., George A. Brownell, The Origin and Development of the National Security Agency (1981)(detailing the NSA); Halperin, The Lawless State, supra note 14, at 171-186 (detailing chapter on the NSA); Jerry J. Berman & Morton H. Halperin (eds.), Center for National Security Studies, The Abuses of the Intelligence Agencies 74-79 (1975)(detailing chapter on the NSA). Unfortunately, in comparison to the number of books discussing the CIA, there are few on the more interesting NSA.
[109] See generally IC Webpage, supra note 2. From the IC Webpage links are provided to each non-DOD’s intelligence agency’s or Department’s central webpage.
[110] In April of 1994 Aldrich Ames, a former high ranking CIA agent was convicted of selling secrets to the USSR. The Ames case received worldwide press and lead to reforms of internal CIA procedures and protocol.
[111] See National Security Counsel (NSC) Directive 1, Dec. 12, 1947 (outlining the AEC’s intelligence functions as the first step by the NSC).
[112] See PFIAB, A Report on Security Problems at the U.S. Dept. of Energy (June 1999) (discussed infra Section III).
[113] See Richard E. Morgan, Domestic Intelligence: Monitoring Dissent in America 88, 104 (1980)(describing the 1970’s intelligence era and discussing whether domestic intelligence activities were unconstitutional).
[114] See Executive Order 11,828 of January 4, 1975 (establishing commission and assigning it three tasks in reference to determining compliance with the National Security Act of 1947, then 50 U.S.C. § 403). The report was submitted on June 6, 1975
[115] CIA Fact Book, supra note 33, at 11.
[116] Id.
[117] See, e.g., Ami Chen Mills, CIA Off Campus (1991)(detailing domestic law and the CIA charter and International law – UN, OAS, Geneva, Nuremberg, Genocide, Universal Declaration of Human Rights, Torture conventions); Robert L. Borosage & John Marks (eds.), The CIA File, 125, 142 (1976)(describing CIA Covert actions and constitutional/ international law); William Blum, Killing Hope: U.S. Military and CIA Interventions Since World War II (1995)(detailing probable internationally illegal intrusions into countries during 55 separate time periods and operations)(formerly, William Blum, CIA: A Forgotten History (1986)); Konstantin Tarasov & Vyacheslav Zubenko, The CIA in Latin America (1984)(describing the same); Ellen Ray et al. (eds.), Dirty Work 2: The CIA in Africa (1979)(describing the same).
[118] See generally Rockefeller Commission Report, supra note 9 (discussing a myriad of CIA activities in the United States; chapters nine and eleven are devoted to mail intercepts); see also Athan Theoharis, Spying on Americans: Political Surveillance from Hoover to the Houston Plan (1978) discussing presidential power, and uses of the intelligence community for illegal political purposes).
[119] The Rockefeller Commission, see supra note 9, was established by Executive Order 11,828 on Jan. 4, 1975, perhaps the most speedy Executive Order ever in response to a major publication by Lardner, see infra note 125. It is interesting to note that then Governor of California Ronald Reagan, for his upstanding character, sat on the Commission. As a result of the scathing Report, George W. Bush was appointed as DCI on Jan. 30, 1976.
[120] See Brian Freemantle, CIA (1983)(describing Operation CHAOS and a general overview of the Agency).
[121] Berman & Halperin, The Abuses of the Intelligence Agencies, supra note 108, at 21, 156-174.
[122] Id.
[123] See Theoharis, supra 21, at 40, 94 (1978)(discussing the McCarran Act in the context of emergency detention programs and the use of the CIA in its intercept programs to further its goals). The McCarran Act, however, was specifically limited to “dangerous” individuals who were reasonably believed to be engaging in illegal activity. Id. at 40.
[124] Berman & Halperin, supra note 108, at 21 (citing the Church Committee Report, at 111).
[125] Id.
[126] Id.
[127] See George Lardner, Jr., “CIA Opened mail of Humphrey, Nixon, Kennedy,” Washington Post, Sept. 25, 1975, at A1 (describing the CIA’s Operation CHAOS and its domestic turns).
[128] Berman & Halperin, Abuses of the Intelligence Agencies, supra note 108, at 2.
[129] Id. Army Intelligence had more than 100,000 files on individuals unassociated with the Armed Services; Secret Service had files on more than 47,000 people and organizations; the IRS had just over 10,000 files; and the FBI accumulated an estimated 6,426,813 files on intelligence and evaluation from these mail opening operations. Id. The organizations ranged from the Communist Party USA (1956) and the Socialist Workers Party (1961) to Black Nationalist Hate Groups (1967) and even the New Left (1968). Id.
[130] See Seymour Hersch, Article, N.Y. Times, Dec. 22, 1974 (uncovering the basic details of Operation CHAOS).
[131] Rockefeller Commission Report, supra note 9 (discussing in chapters nine and eleven).
[132] See, e.g., Weisman v. CIA, 565 F.2d 692 (D.C. Cir. 1977)(stating that the “National Security Act of 1947 at the very least prohibited the CIA from conducting secret investigations of United States citizens, in this country, who have no connection with the agency” or espionage); Birnbaum v. United States, 588 F.2d 319, 331 (2nd Cir. 1978)(stating again that the CIA cannot gather secret data on any domestic concerns).
[133] Berman & Halperin, Abuses of the Intelligence Agencies, supra note 108, at 15 (stating that the FBI has authority to investigate domestically).
[134] 28 U.S.C. § 533 (1994) (authorizing the FBI to “detect ... crime against the United States by investigating persons or incidents when there is reason to believe that a federal crime has been or is likely to be committed so that the violations can be prosecuted or the crime prevented”)(emphasis added).
[135] Id.
[136] 407 U.S. 297 (1972).
[137] 516 F.2d 594 (D.C. Cir. 1975)(indicating that even surveillance of domestic organizations predicated on foreign threats to national security or an intelligence activity need a warrant).
[138] Berman & Halperin, Abuses of the Intelligence Agencies, supra note 108, at 32-49 (discussing warrantless electronic surveillance).
[139] President's Commission on CIA Activities within the U.S., Report to the President, supra note 9, at 5 (herein “the Rockefeller Report”).
[140] See Olmstead v. United States (Brandeis, dissenting), 277 U.S. 471, 479 (1928), supra note 1 (quoting at the introduction of this paper); see also Richard Lyons, “Church Warns of U.S. Tyranny,” Washington Post, Aug. 18, 1975, at A3 (describing the very fear that the framers, in creating a separation of powers, had hoped to avoid in creating an imperialist executive).
[141] On January 27, 1975 the Senate established the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, chaired by Sen. Frank Church (the “Church Committee”) and February 19 the House established its Select Committee on Intelligence. CIA Webpage, “Key Events in CIA’s History” (last visited September 5, 1999) (<http://www.odci.gov/cia/publications/facttell/keyevent.htm> detailing historical moments of the CIA). Although the Senate issued its final report publicly on April 26, 1976, the House voted to withhold public dissemination of the Committee’s final report two days before conclusion. Id.; see also Loch K. Johnson, America’s Secret Power: The CIA in a Democratic Society (1989)(written by a former Church Committee member with more emphasis on text and analysis than history or legal documents).
[142] Id. President Carter also announced the creation of a new oversight committee on August 4, 1977 and signed Executive Order 12036 reshaping the intelligence structure with explicit guidelines on all facets of intelligence activities. Id.
[143] See generally, President’s Foreign Intelligence Advisory Board (last visited September 11, 1999) <http://www.whitehouse.gov/WH/EOP/pfiab/index.html> (hereinafter PFIAB Webpage).
[144] The Board was established in 1956 by President Eisenhower under the name of the “President’s Board of Consultants on Foreign Intelligence Activities.” Id. Since its creation the Board has served all Presidents except President Carter. Id.
[145] PFIAB Webpage.
[146] CIA Webpage, supra note 18 (citing Executive Order 12,863, § 1.2).
[147] CIA Webpage, supra note 18.
[148] A series of Executive Orders also replaced one another in regard to Presidential oversight. It’s a sufficient example to note that although an Executive Order has the force of law, it is a law that is subject to quick change where necessary. See, e.g., Executive Order 11,984 (1977)(“Abolishing the President’s Foreign Intelligence Advisory Board” in established in Executive Order 11,905); Executive Order 11,985 and 11,994 (1977)(modifying “U.S. Foreign Intelligence Activities”); Executive Order 12,036 (1978)(amending previous orders on “U.S. Intelligence Activities”); Executive Order 12,331 (1981)(re-enacting the “President’s Foreign Intelligence Advisory Board”); Executive Order 12,537 (1985)(same); Executive Order 12,863 (1993)(revoking the preceding Orders 12,334 and 12,537).
[149] Executive Order 12,863 § 2.1.
[150] CIA Webpage, supra note 18 (referring to Executive Order 12,863 § 2.2 outline duties of the IOB).
[151] PFIAB, first established in 1961 (although it was really created in 1956 as the President’s Board of Consultants), has been dismantled and reestablished numerous times. See, e.g., Executive Order 12,333 (reestablishing); Executive Order 12,537 (reestablishing in 1985); Executive Order 11,984 (abolishing the PFIAB created by Executive Order 11,460).
[152] Id.
[153] See Appendix (National Intelligence Reorganization & Reform Act of 1978 (S. 2525), 95th Cong., 2d Sess., Cong. Rec. 3110-3141 (1978)).
[154] Id.
[155] Again this comment is subject to its own criticisms. Just as the one-house veto in INS v. Chadha, see infra note 159, was ruled unconstitutional, surely a defeat of merely a proposed bill in one Committee would be insufficient. However, the fact that the intelligence Oversight Act of 1980 was the only salvable portion of the bill to survive, it may suggest that Congress did impliedly recognize this authority was properly vested with the executive.
[156] The last organizational reforms to the CIA came about in 1992 after the Aldrich Ames case, but in fact were not that substantial. Intelligence Organization Act of 1992, P.L. 102-496 (1992)(amending 50 U.S.C. §401).
[157] Farkas, 375 F.2d at 632 (5th Cir. 1967).
[158] The Clark-Tunny Amendment to the Arms Export Control Act in June of 1976 specifically banned covert operations in Angola and restricted the flow of money. However, in July of 1985 President Reagan was able to get Clark-Tunny repealed.
[159] See Intelligence Oversight Act of 1980 (added §501 to the National Security Act of 1947):
(a) The DCI and heads of all [intelligence] departments, agencies and other entities shall:
(1) ...keep the Senate and House Committees on intelligence...”fully and currently informed of all intelligence activities [by them]...including any significant anticipated intelligence activity, except that:
(A) the foregoing provision shall not
require approval of the intelligence communities as a condition precedent to
the initiation of any such anticipated intelligence activity; and (B) if the
President determines it is essential to limit prior notice to meet
extraordinary circumstances affecting vital interests...[limited to ranking
members].
(b)
The President shall
fully inform the intelligence committees in a timely fashion of intelligence
operations in foreign countries, other than activities intended solely for
obtaining necessary intelligence, for which prior notice was not given under
subsection (a) and shall provide a statement of the reasons for not giving
prior notice.
(Emphasis added.) Id. The result of this Act was that it gave the congressional committees “exclusive” jurisdiction of review of CIA activities, but it is limited in that it provided no congressional controls over intelligence operations – only oversight. Thus, the President still controls the policy choices behind the intelligence community, as filtered through the DCI.
[160] See Dames & Moore v. Regan, 453 U.S. 654 (1981)(stating that implied acquiescence by Congress hence authorized President Carter’s taking of certain actions to obtain the release of American Hostages in Iran).
[161] For instance, despite the requirements found in Executive Order 12,036 (1978), essentially the precursor to the Intelligence Oversight Act of 1980, but replaced by Executive Order 12,333 (1981), the President was able to rely on the old 1868 Hostages Act, 22 U.S.C. § 1732(1982), prior to its amendment, to rescue hostages from the Canadian embassy in Tehran in 1979 despite violating Hughes-Ryan by not disclosing the action to Congress).
[162] 462 U.S. 919 (1983).
[163] U.S. Const., art I, §§ 1 and 7 (limiting a law’s application until passage in both houses).
[164] U.S. Const., art I, §7, cl. 2 (listing the presentment clause).
[165] In particular, Section 5(b)(2), which appears to be a legislative veto), casts the War Powers Resolution in serious constitutional doubt.
[166] See id.