Constitutionalism and American Public Policy 1
Constitutionalism and American Public Policy: The Impact of Democratic Oversight
and How Covert Operations Shape Foreign Policy
Connie C. Patrick
Helms School of Government, Liberty University
Abstract
This research paper analyzes the long-term impact of covert operations in shaping U.S foreign
policy. This paper draws on the conclusion that the powers of the government have extended far
beyond legislative, executive, and judiciary branches into realms of intelligence that often
operate in the blindness of constitutional oversight. The intent of creating the three branches of
government was to limit state sovereignty and give more power to the federal government. This
paper will argue that secret agencies practice a form of sovereignty that is invisible and has a
Constitutionalism and American Public Policy 2
parallel power structure to the sovereignty states practiced between 1781 and 1789. How they
yield this form of “covert sovereignty” is essential to understanding how foreign policy is created
and enforced. The authority that is held by the intelligence agencies is necessary to conduct
successful covert operations, but is often questioned in regards to democratic oversight. It is the
goal of this paper to observe constitutional principles and historical precedents to discover the
limits of intelligence agency power and the scope of democratic oversight in limiting these
powers.
Keywords: democratic oversight, constitutional oversight, sovereignty, intelligence agencies
The Impact of Democratic Oversight and How Covert Operations Shape Foreign Policy
Introduction
According to Congress’s official site, “the President must notify Congress of all covert actions
and significant clandestine activities of the Intelligence Community (IC),” yet, there are various
cases where Congress is oblivious to covert operations conducted by the President and the
intelligence community (Congressional Research Service, 2023). Such ignorance has led to a
magnitude of congressional oversight.
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The power of Congress was implemented to limit the power of the states. According to
McClellan (2000), the Articles of Confederation had given the states too much authority or has
he states, “the Articles of Confederation rested on the premise that all legislative authority
originated in the people of each State…” (p. 155). The power that was given to the states created
a weak central government which was strengthened only by creating three branches of
government and a system of checks and balances. According to McClellan, “It was clear, too,
that at least in foreign affairs the general government must be enabled to act with greater
firmness and authority.” The need for firmness and authority can be seen in modern foreign
policy as covert operations are often used as a tool to ensure countries’ interests are promoted.
Can Secrecy and Democracy Coexist?
One could argue that confidentiality is essential to governance especially as it relates to national
security and intelligence. Yet, democracy is put into question when secrecy challenges public
trust. There are key democratic principles that maintain public trust and the moral implications of
covert operations are too vague and lack the boundaries for oversight (Beitz, 1989).
Transparency is a key component of democratic governance, as the top of the constitution states
“We The People”. The people is an embodiment of all the citizens of the United States and as
McClellan (2002) plainly suggests: “with a good constitutional order the people ought not to be
ruled by a group or class of persons quite different from themselves who do not have at heart the
best interests of the majority of the people” (p. 7). Therefore how can we stand blindly as a group
of people covertly rule and shape domestic and foreign policy. Secrecy has its pros and with
strict controls and oversights can effectively shape America’s interest (Berkowitz, n.d.).
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Berkowitz (n.d.) argues that there are necessary conditions for a state to be established as a
democracy and the most essential condition is voting as he states, “the only objective way to
measure the will of the people is through voting, and elections can produce widely varied
outcomes, depending entirely upon the procedure that is used. One need only look to the most
recent U.S. presidential election to see this.” Berkowitz also acknowledges two necessary
conditions for effective intelligence which are scarcity and exclusivity. Upon further analysis,
one could conclude that the necessary conditions for democracy and intelligence contradict and
cannot exist simultaneously. As voting requires a certain level of transparency of a person’s
actions and if said person were to have been in any covert operations, due to congressional
oversight, the people wouldn’t know due to “scarcity and exclusivity.”
The Impact of Congressional Oversight on Foreign Policy
The renowned legal Scholar Ashley Deeks (2016) points out critical details relating to foreign
actors and their ability to shape U.S policy due to congressional oversight. It is Deeks' (2016)
belief that “ foreign actors can have direct and indirect influence on U.S checks and balances”
due to leaks, transparency and legal rules (p. 65). Deeks (2016) also observes the ways in which
foreign actors trigger checks and balances by simulating some type of effect pushing congress or
the judicial branch to “check” the president. Limiting the power of the President and controlling
foreign policy is a tactic foreign entities use often largely due to “Congress’s inability to conduct
appropriate levels of intelligence oversight” (p. 65).
The precipice of congressional oversight as it relates to the intelligence community began during
the Cold War. The pressure of defeating the perceived global communist threat led to a “by any
means” approach that birthed the “Year of Intelligence” in 1975 which was also the year that the
Constitutionalism and American Public Policy 5
Senate Select Committee on Intelligence was created (Johnson, 2004). There were several factors
that prevented the effectiveness of this committee such as political motivations and secrecy held
onto by the executive branch. Senator Saltonstall, who was a ranking member on the Oversight
Committee stated that he is not interested in seeking information and knowledge from CIA
officials. (Wrage, 1980). This level of willful ignorance explains why intelligence agencies have
“covert sovereignty” and the means to shape domestic and foreign policy. Covert operations such
as “surveillance of anti-war movement, opening of mail, infiltration or funding of student
groups, labor unions and immigrant organizations” (Wrage, 1980), are a few examples of
meticulous acts that have successfully shaped policy. The fact is Senators have declined on
hearing CIA briefings resulting in complete congressional oversight particularly in the legislative
realm. There have even been several cases where the executive branch has conspired with
intelligence agencies to promote their own foreign interests and not the interests of the people.
FOr an example in an attempt to garner support for a war in Cuba, The chairman of the Joint
Chiefs of Staff, General Lyman Lemnitzer, and top CIA officials drafted “Operation Northwood”
which would have resulted in a staged terrorist attack that killed innocent civilians. Luckily
“Operation Northwood” was stopped by the secretary of defense (Miller, 2012). Surprisingly, the
operation was not shut down by congress because they had no insight into it happening. Miller
(2012) discovered that the Rockefeller Commission and the Church committee had found 14
reports of the CIA abusing power. The Committees also found that the CIA was heavily involved
in shaping foreign policy acknowledging that the CIA had several assassination attempts for
leaders in the Congo, Dominican Republic, Vietnam and Cuba (Miller, 2012).
Covert Operations as a Tool for Foreign Policy
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In his research paper, Mission Impossible: The CIA and the Cult of Covert Action in the Middle
East, Little (2004) narrates “Operation Ajax”, a coup that took place in Iran. During “Operation
Ajax”, the then Prime Minister of Iran, Mohammad Mossasde was deliberately replaced with
Mohammad Reza Pahlavi, known as the Shah. This coup was meticulously planned by the MI6
and the CIA so that they could have control and influence on Iran as the Shah had a more
“westernized ideology” (Little, 2024). This proves that despite the role of congress, the
President, and Secretary of State, such covert operations ultimately shaped the direction of
former foreign policy and even though the Shah is no longer in power today, who knows what
these secret agencies accomplished during his reign. Similar cases have happened in Tibet,
Guatemala, Indonesia. This pattern of behavior begs the question, who is really shaping foreign
policy and what are the lengths these intelligence agencies will take to seize control and promote
their own policy interests.
State Sovereignty vs. Covert Sovereignty
The authority exemplified by these intelligence agencies seems almost parallel to the power
structure of the states when they were operating under the Articles of Confederation. One of the
main parallels is the decentralized form of power and lack of central authority that governs them
accordingly. Both the states and secret agencies retain a considerate amount of autonomy that is
not regulated properly. Under the Articles of Confederation, there was a weak central
government that encouraged the development of not just a constitution, but a more effective
constitution (McClellan, 2000). To adjust these power imbalances, the founders took action
creating the constitution. Now we are at the beginning of another power imbalance, but it is not
Constitutionalism and American Public Policy 7
the states who have sovereignty but intelligence agencies who have “covert sovereignty”, a form
of power that is invisible, yet simultaneously shapes domestic and foreign policy.
The Need to Balance National Security and Democratic Oversight
In reference to how foreign policy is conducted and practiced in America,Tocqueville (2012)
states that:
“We have seen that the federal Constitution places the permanent leadership of the
foreign interests of the nation in the hands of the President and of the Senate, which to a
certain extent puts the general policy of the Union outside of the direct and daily
influence of the people. So we cannot say in an absolute manner that, in America, it is
democracy that conducts the foreign affairs of the State (p. 366-367).
Foreign policy cannot be shaped by the people yet it is shaped by intelligence agencies both
domestically and abroad. The foreign interests of the people can only be expressed through their
representatives but intelligence agents are not elected officials, therefore the interests of the
American people are not being projected clearly. The constitution was written to give “the
people” a voice, a means of effective democratic governance, yet it seems like this power is
given instead to domestic and foreign entities. Sartori (1962) suggests that an effective
constitution voices the will of the people and bad constitutions “come to include unrealistic
promises and glamorous professions of faith on the one hand, and numberless frivolous details
on the other. Some of them are by now so "democratic" that either they are no longer
constitutions (for a constitution limits the "will of the people" concept of democracy just as much
as it limits the will of the power holders) (p. 862). When the will of the people is ignored, this
creates a concentrated form of power for the power holders, and in this case those who are
Constitutionalism and American Public Policy 8
shaping policy through intelligence are the “power holders”. (DeRosa & Regan, 2018) In order
to balance National Security and Democratic Oversight, the people need to be allowed to make
decisions as it relates to foreign policy. What this looks like in practice would mean new
additions to the constitution that grants this ability to not just the President and the Senate. For
instance, to combat this concentration of power, an advisory panel constructed of the citizens
can be created. There also needs to be enhanced oversight, judicial review, and an increased level
of transparency. There needs to be some form of independent review that is able to investigate
and hold those who conduct covert operations accountable. It’s almost as if the “will of the
people” are being ignored specifically in foreign policy and intelligence. There is a desperate
need for the voice of the people to be heard.
Conclusion
Direct public involvement with national security is complicated as it requires a level of secrecy
and expertise. The risk of exposing the public to national security interests can be dangerous but
so can concentrating this level of power into intelligence agencies who do not directly represent
the people. The challenge in this case becomes balancing democratic oversight and national
security. This would require a high level of fundamental changes to the constitution but it is my
opinion that it is possible and necessary to ensure checks and balances expand into shaping
foreign policy.
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Constitutionalism and American Public Policy
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