Discussion Covert Action and Intelligence2
TurkiT
POL341Week5Lecture.pptxPOL341 Covert Action and Intelligence Week 5 Lecture Intelligence Oversight and Accountability
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National Security
Internal: Ethics of individuals, country, and organization, political philosopy, American morality (democracy), Executive self-regulation, IC intra-agency competing interests (State v. DoD)
External: Journalists, Judiciary, Self-policing, Congress (Laws), Constitution, International Law, Blowback, Economic, Privacy, Transparency
VS.
Necessary Friction: Sources of Oversight and Accountability
Our country is built on balancing of power, regulation against monopoly (Absolute) power, and compromise. There are necessary internal and external forces that create necessary friction. This tension occurred throughout history and still occurs as we confront new threats and issues. We will discuss some of these in this unit.
We talked about many of the reform recently adopted by the Intelligence Community. Much of this came as a result of some of the oversight entities examining the intelligence issues after 9/11 and the Iraq War.
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U.S. Civics 101: Powers
Congress
Constitution
White House/Exec
Agency
Cong/Const create authority and agency
Executive “raises” and utilizes
Basic relationships of power in American Government. Most executive agencies are created by Congress. If the power is broad, then Executive Branch and the agency have broad discretion until
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Nat Sec Exec Agency
Oversight & Accountability
Congress
Press
Public
Judiciary
White House
Inform
Direct
Oversight
Fund/Create
The People also have some power over the executive and legislative through the electoral process.
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Congress has historically been uncomfortable with “Secret” Executive power with limited oversight
Recall the GW Secret Contingency Fund without oversight from Lecture 2?
“ The President sends first, and asks for our advice and consent afterward.”
Senator William Maclay (Anti-Administration Party, PA), after learning of Washington’s sending of a former Army Colonel to spy on Britain and Spain during the Spanish War.
Intelligence Oversight and Accountability
“It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest. “ -- John Jay
Federalist No. 64: The Powers of the Senate
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There are not many notes kept from the consitutional convention, however the Federalist Papers are an important source for understanding the new Constitution when it was ratified. Madison’s Notes and the official Journal were not published for decades.
National Intelligence Program (NIP) – DNI Supervised
Military Intelligence Program (MIP)- Supervised by The Under Secretary of Defense for Intelligence (USD(I)), and supports military policymakers and commanders worldwide
Authorize: House Permanent Select Committee on Intelligence and the Senate Committee on Intelligence, with some funds through the House&Senate Armed Services
Appropriation: House&Senate Oversight committees but no specific committee on appropriates.
The Intelligence Budget Revisited
But should the budget be public?
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Article 1, Section 9, clause 7 of the Constitution provides:
No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
Intelligence and Congress’ Purse Strings
Some argue that secret funding is unconstitutional. This clause is vague, particularly the time to time language.
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CIA Act 1949:
CIA can receive money from other agencies: “to transfer to and receive from other Government agencies such sums as may be approved by the Bureau of the Budget [predecessor or today’s Office of Management and Budget]. . . .”
CIA can spend money "without regard to the provisions of law and regulations relating to the expenditure of government funds," with limited accounting for "confidential, extraordinary, or emergency" spending.
Bur of Budg
Legal Money Laundry
See: http://www.enotes.com/central-intelligence-agency-act-1949-reference/central-intelligence-agency-act-1949
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UNITED STATES v. RICHARDSON (Sup Ct., 1973). Congress
No Standing
But…if we did decide, Congress can ask for accounting, but secret accounting might be necessary.
The Intelligence Budget
Richardson, a taxpayer interested in activities of the Central Intelligence Agency, sued the government to provide records detailing the CIA's expenditures. Court held the taxpayer did not have standing (the right) to sue the government.
Warren Burger “Dicta:” `Although we need not reach or decide precisely what is meant by `a regular Statement and Account,' it is clear that Congress has plenary power to exact any reporting and accounting it considers appropriate in the public interest. . . . While the available evidence is neither qualitatively nor quantitatively conclusive, historical analysis of the genesis of cl. 7 suggests that it was intended to permit some degree of secrecy of governmental operations. . . .
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9/11 Commission :
“the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret.”
The Intelligence Budget
CIA 1949: “to transfer to and receive from other Government
agencies such sums as may be approved by the Bureau of the Budget [predecessor of
today’s Office of Management and Budget]. . . .”
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What are the Political and Secrecy Issues in the Intelligence Budget?
Why not give the agencies a blank check?
Why is congressional oversight problematic?
Paying for the Intelligence Services
United States Code
Title 50 – War and National Defense
Chapter 15 – National Security
Subchapter III – Accountability for Intelligence Activities
50 USC 413 – General Congressional Oversight Provisions
50 USC 413a – Reporting of Intelligence Activities Other than Covert Actions
50 USC 413b – Presidential Approval and Reporting of Covert Actions
50 USC 414 – Funding of Intelligence Activities
National Security Act Provisions
Recall the monumental national security act and the subsequent revisions. It now requires presidential findings for covert action. But the notification of Congress is hardly a settled issues and is the result of constant tension.
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“To the extent consistent with all applicable authorities and duties, including those conferred by the Constitution upon the executive and legislative branches of the Government, and to the extent consistent with due regard for the protection from unauthorized disclosure of classified information and information relating to intelligence sources and methods, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States involved in intelligence activities shall: (1) keep the . . . [intelligence committees] fully and currently informed of all intelligence activities.” -- - National Security Act of 1947, as amended, § 501; 50 U.S.C. § 413.
Hughes-Ryan Amendment (1974)
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“[C]landestine intelligence activities, by their very nature, must be conducted by the executive branch with the degree of secrecy that insulates them from the full scope of these review mechanisms. Such secrecy in intelligence operations is essential if we are to preserve our society, with all its freedoms, from foreign enemies. . . .
Atty. Gen. Griffin Bell (Carter Admin.) to HPSCI (1978)
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Still no requirement of a “finding” in which the President personally would authorize a collection operation
Repeating the obligation imposed by section 413, 413a requires that SSCI and HPSCI be kept currently informed of collection operations
New: 413a specifies an obligation to provide the committees with additional information upon request, subject to the need to protect sources and methods and other unusually sensitive information.
50 USC 413a – Reporting of Intelligence Activities Other than Covert Actions
Dec. 1974, Seymour Hirsh, CIA Illegal wiretapping of Journalists and Dissidents
Church Committee in Congress formed a few months later
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB222/index.htm
Journalism as Oversight
In 1975, the Senate created the Select Committee to Study Governmental Operations with Respect to Intelligence Activities in response to a raft of media allegations of wrongdoing. The panel – better known by the name of its chairman
Sen. Frank Church (D-Idaho) – interpreted its charter as a mandate to "determine what secret governmental activities are necessary and how they best can be conducted under the rule of law."
Church Committee
One of the most extensive reviews of the intelligence world, covering topics to include covert action and domestic surveillance (CI). See: Archive: http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm
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An additional possibility is that the President may, in fact, not be fully and accurately informed about a sensitive operation because he failed to receive the “circumlocutious” message...The Committee finds that the system of Executive command and control was so inherently ambiguous that it is difficult to be certain at what level assassination activity was known and authorized. This creates the disturbing prospect that assassination activity might have been undertaken by officials of the United States Government without its having been incontrovertibly clear that there was explicit authorization from the President of the United States.
Church on Assassination and Plausible Deniability
Church Committee II Section B Page 11; IV. Findings and Conclusions Section C Subsection 1 Page 261.
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"Plausible denial" increases the risk of misunderstanding. Subordinate officials should describe their proposals in clear, precise, and brutally frank language; superiors are entitled to, and should demand, no less.
Church on Plausible Deniability
Recall this term from Covert Action. Church Committee IV. Section C Subsection 5 Page 277.
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It was naive for policymakers to assume that sponsorship of actions as big as the [Bay of Pigs] invasion could be concealed. The Committee’s investigation of assassination and the public disclosures which preceded the inquiry demonstrate that when the United States resorted to cloak-and-dagger tactics, its hand was ultimately exposed.
Church on Paramilitary Ops and Plausible Deniability
Church Committee IV. Findings and Conclusions Section C Subsection 5 Page 277.
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Church on Chile(ing) Effects
Archive: http://www.aarclibrary.org/publib/contents/church/contents_church_reports.htm
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Executive Self-Policing
The President's Foreign Intelligence Advisory Board (PFIAB)
The President's Intelligence Oversight Board (IOB)
The Office of Management and Budget (OMB)
http://www.whitehouse.gov/administration/eop/piab
Legislative
The Senate Select Committee on Intelligence (SSCI)
House Permanent Select Committee on Intelligence (HPSCI)
http://www.intelligence.senate.gov
http:// intelligence.house.gov
Judiciary
Current Government Oversight
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The President's Foreign Intelligence Advisory Board (PFIAB): The PFIAB is an entity within the Executive Office of the President, formed "to assess the quality, quantity, and adequacy" of intelligence collection, analysis, counterintelligence, and other activities of the IC. The PFIAB reports directly to the President, and provides recommendations for actions to improve and enhance the performance of intelligence efforts. It also examines issues raised by the President or the Director of National Intelligence, and can make recommendations directly to the DNI. Membership of the PFIAB consists of not more than 16 persons appointed by the President.
The President's Intelligence Oversight Board (IOB): Once a separate organization under the President, the IOB was made a standing committee of the PFIAB in 1993. The IOB is composed of four members of the PFIAB appointed by the Chairman of the PFIAB. The IOB conducts independent oversight investigations as required and reviews the oversight practices and procedures of the inspectors general and general counsels of intelligence agencies.
The Office of Management and Budget (OMB): OMB is part of the Executive Office of the President. It reviews intelligence budgets in light of presidential policies and priorities, clears proposed testimony, and approves draft intelligence legislation for submission to Congress.
