Executive Secrets

by William J. Daugherty

  THE PRESIDENTIAL FINDING

  But the general mistrust of the executive branch that arose from the Vietnam War was then exacerbated by other events, including but not limited to U.S. activities surrounding a military coup in Chile that replaced a democratically elected (albeit Socialist) government with a military dictatorship. These events, along with the revelations of earlier covert actions and the Watergate scandal, conspired to place the executive branch in a weakened position vis-à- vis a Congress that was intent on aggressively reasserting its constitutional prerogatives in foreign policy—including a more active role in intelligence matters.4

  A growing civil war in the former Portuguese colony of Angola led to the Ford administration’s decision to intervene covertly on the side of the anti-Marxist forces, and also heightened congressional interest in other intelligence operations. In the words of one CIA general-counsel: “In particular, the involvement of the CIA in various covert activities received considerable attention. Congressional reaction was an attempt to assert control.”5 But from the perspective of legislators on the Hill, the purpose behind “asserting” authority was not to control but instead to “ensure clear lines of authority and accountability.”6 The legislative mechanism for asserting control over covert action was the Hughes-Ryan Amendment to the Foreign Assistance Act of 1961—interestingly, the only intelligence reform measure passed by a Congress that had considered over two hundred such proposals.7 (Moreover, in the quarter-century from 1949 to 1975, only two out of 150 proposals for reforming intelligence oversight passed the Congress.)8 In short, Hughes-Ryan prohibited the expenditure of any funds by any U.S. government agency for covert action operations unless the president “found” that the operations were in the national security interest of the United States and reported this to the Congress, in writing. Not surprisingly, the reporting document quickly became known as a “Presidential Finding.” Amendments to extant Findings were called “Memoranda of Notification,” or MON.9

  Enacted in 1974, the Hughes-Ryan Amendment had two immediate effects. First, it eliminated the president’s ability to disclaim any knowledge of covert action operations. From Truman’s time on, presidents had sought to strictly limit the knowledge of covert action programs, in part so that they could maintain “plausible deniability” of U.S. government involvement in case of public exposure or compromise. With the advent of the Finding, the president not only had to put his name to a paper directing that the operation take place, but that paper had to be transmitted to Congress in advance of commencing the program, expanding significantly the number of people aware of the program (“witting,” in Agency parlance). Hughes-Ryan initially required that the Finding be reported to a total of eight congressional committees, four in each house: the Appropriations, Armed Services, and Foreign Affairs Committees and the new intelligence oversight committees—the House Permanent Select Committee on Intelligence (HPSCI), and the Senate Select Committee on Intelligence (SSCI). Thus, the total number of witting persons on Capitol Hill was not small, for selected committee staff were also read into the programs. The Intelligence Oversight Act of 1980 amended Hughes-Ryan by reducing to two the number of congressional committees requiring notification—the intelligence oversight committees—but nonetheless Hughes-Ryan was the practical death of “plausible deniability.”10

  The administrative demise of plausible deniability by dint of the Finding coincided with the arrival of William E. Colby as director of central intelligence, who asserted that he “proscribed the use of that term [because] I do not believe that we can tell the American people an untruth . . . we can give the American people true statements, and keep secret other matters that have to be secret, [b]ut I do not believe we can tell them an untruth.”11 From another perspective, accountability to Congress and, ultimately, to the American people is completely antithetical to the concept of plausible deniability.12 This is as it should be in a democracy; with the advent of the Finding, accountability trumped deniability.

  Second, Hughes-Ryan gave Congress constitutional as well as informal means to halt covert action operations in progress and prevent new programs from commencing. In essence, the amendment established the equivalent of a congressional veto over covert action programs, even though Findings technically only inform Congress and are not a request for program approval. Nonetheless, Congress holds this veto through its constitutional authority to authorize and appropriate public funds. Whereas presidents had previously been able to pay for covert action programs by tapping the general (and secret) Agency budget outside of congressional scrutiny, now Congress would know explicitly how the funds were being spent. If presented with a Finding that didn’t meet its favor, Congress, through HPSCI and SSCI, could refuse the monies, thus stopping the covert action program dead.13

  Members of the oversight committees could also take their objections directly to the president, who might find well-reasoned concerns sufficiently compelling to cancel a Finding. According to scholars, Presidents Carter, Reagan, and George H.W. Bush heeded the concerns of legislators and annulled Findings—but whether the presidents were convinced by the force of the legislators’ argument or whether they were reluctant to buck powerful members of Congress and risk retaliation against other presidentially desired programs is unclear. A covert action program in Africa proposed soon after Reagan’s inauguration resulted in the receipt of a letter from HPSCI of sufficient impact that it persuaded the White House to drop the plan. And both Reagan and George H.W. Bush floated to the oversight committees covert action proposals to overthrow Panamanian dictator Manuel Noriega. The legislators thought Reagan’s plan, which reportedly had already been enshrined in a signed Finding that then had to be rescinded, might result in the death of Noriega. In Bush’s case the proposal, which apparently was constituted in a briefing to Congress, was thought by the solons to be too “vague” and lacking in substance.14

  And too, the intelligence oversight committees have the right to take to the full House or Senate any issues or concerns they have, which, in the case of covert action programs, would destroy the “covertness”—either forcing the president to drop the program or find a way to pursue it through overt mechanisms. And finally, a less-than-respectable but just as effective “last resort veto” could be achieved simply by leaking the existence of the Finding to the press.15

  But the congressional oversight ensured by a Finding or MON isn’t all negative for the executive branch by any means. When Congress favors a program it can be strongly supportive in a number of ways. It can, of course, insure that sufficient funds (or more) are always available. If the members and staffers understand fully the difficulties and risks involved in a particular program or operation, they can come to the defense of the Agency if there should be a compromise or failure. If unforeseen problems or circumstances arise, the overseers may be the first to step forward and ask, “What do you need? What can we do to help?” Members of Congress, and especially committee staff, often possess more knowledge about the programs than the Agency officers managing them, as those on the Hill tend to stay in their positions for years while Agency personnel usually change assignments every two to three years, if not more often. Thus, the overseers frequently have more long-term memory and understanding of a program than do their Agency contacts. This enables the committee members and staff to alert the intelligence managers to problems or developments that they might otherwise have missed. And if the Agency personnel involved have been straightforward and honest in reporting the accomplishments and other events in a program, the personal trust generated between the Agency officers and the committees will often pay dividends in the future.

  Like the benefits of congressional oversight, there was another, delayed result of Hughes-Ryan that became apparent only in later years: Should Findings apply only to purely “classical” covert action programs, or should they be utilized also for intelligence activities that are either clearly not intelligence collection or CI and/or that constitute a “special activit
y” employing the CIA’s covert action infrastructure (i.e., personnel and resources—aircraft, boats, technology, stocks—that are maintained under the CIA umbrella for use in covert action programs)? If the latter, then missions such as the foreign training programs in support of friendly governments carried out by the Agency’s paramilitary/special operations cadre would require Findings.16 By 1988 the broader interpretation prevailed, and Findings were written for any program that manifestly was not FI or CI, whether a classic covert action operation or simply a foreign government support program that utilized the covert action infrastructure (i.e., a “special activity”).

  More revisions of Hughes-Ryan followed with the Intelligence Oversight Act of 1988, passed in the wake of the Iran-Contra abuses. One transgression that had caught in the legislative craw was the ten-month delay (perhaps at the urging of DCI William J. Casey) between President Reagan’s decision to sell arms to the Iranians in exchange for American hostages held in Beirut and his subsequent notification of Congress of this program—which he gave only after it had been revealed to the world in a Lebanese newspaper. The Intelligence Oversight Act of 1980 had amended the original Hughes-Ryan notification requirements to permit the president to notify Congress of any new Finding in a “timely fashion,” an opaque phrase that was not further defined (recall that the original language had required only advance notice). The Reagan administration had argued that “timely fashion” gave the president “virtually unfettered discretion to choose the right moment” to reveal a program to the legislative branch. Believing that this would allow any president to hide from Congress sensitive programs, thus undermining Congress’s constitutional responsibility to conduct oversight of the executive, the 1988 Act discarded “timely fashion” in favor of a near-absolute forty-eight-hour period, although this stipulation did not preclude the president from acting absent congressional consultation in an emergency situation to protect the national interest.

  The Intelligence Authorization Act of 1991 officially repealed Hughes-Ryan and replaced it with even stronger statutory oversight demands. It’s obvious from even the most general reading of the Act’s requirements that the abuses of power discovered in the Iran-Contra scandal lay at the foundation of the new legislation. The Act specifically mandates that the president be the final approving authority for covert action programs, that he sign the document specifically noting this fact, and that he affirm that the programs are in support of “identifiable policy objectives.” No Finding may be signed retroactively and all must be in writing. No part of the program can violate the Constitution of the United States or any extant federal law. The president must list all U.S. government agencies that play a role in the program, as well as any foreign (i.e., “third party”) countries involved. Finally, no program can be used to influence U.S. political processes, media, policies, or public opinion. The forty-eight-hour notification requirement remained.17

  APPROVAL AND REVIEW IN

  HISTORICAL PERSPECTIVE

  From Truman to Nixon (that is, prior to Hughes-Ryan), only large-scale or politically risky programs received presidential scrutiny. The CIA had the standing authority to initiate and execute low-level, low-cost, low-risk “routine” covert action programs without prior presidential approval or even notification, so long as the programs were in consonance with presidentially established foreign policy objectives. These programs existed alongside those that manifestly did require presidential attention. For the major programs, presidents consulted only with the highest levels of the national security departments and agencies; rarely did any mid-level officers participate, as each president sought to strictly limit the number of people knowledgeable of the mere existence of covert action programs, much less their details. With only the president and his closest, most trusted associates aware of these programs, plausible deniability would be more effective in case of compromise.

  But limiting knowledge of programs had one major drawback: it excluded experts on the geographic regions and on the key issues at hand who worked further down the chain—professionals who might have saved several presidents much embarrassment. For example, Cuban experts at the CIA and State Department could have explained why the masses would still support Castro rather than the invading rebels, and amphibious warfare experts at the Defense Department could have explained why the Bay of Pigs was an execrable site for landing an invasion force. But Kennedy’s desire for secrecy and repeated assurances of senior officers who were not authorities on Cuba led to the exclusion of the true experts.

  Although not covert action, the Iranian hostage rescue mission also serves as an example of what can result when a program is too compartmentalized. Eagle Claw, as it was named, was an operation that suffered gravely from secrecy and “need to know,” but for a different reason than the Bay of Pigs. While plausible deniability was the predominant goal in the Bay of Pigs, with Eagle Claw the highest priority in the planning and rehearsal stages was operational security. Washington policy makers were certain that if Soviet intelligence were to learn of the mission, whether through human spies, satellite coverage, signals intelligence, or other methodology, they would alert their Iranian neighbors (the Soviets having nothing to lose and much to gain by doing so). Virtually all decisions made with respect to planning and rehearsing for Eagle Claw opted to err on the side of security, and this factor, combined with other misjudgments (e.g., the weather and the number of helicopters), reduced the chances of success significantly.18

  With the advent of the Finding, the demise of presidential deniability, and the necessity of placing all covert action programs within the jurisdiction of Hughes-Ryan regardless of scope, cost, or risk, there was a recognized need at the White House for more scrutiny and control over the programs. For this to transpire, a systematic, institutionalized process both for approving new programs and periodically reviewing extant programs for effectiveness, risk, and policy adherence had to be created. As it has developed, the covert action approval and review process exists solely at the discretion of the president, who can make the reviewing group(s) as large or small, or as numerous, as he wishes (or dispense with any such group altogether); likewise, he can make the process formal, casual, or somewhere in between. The processes have been refined within the various administrations over the past three decades primarily because of deficiencies in the original Hughes-Ryan Amendment, the deliberate efforts to circumvent congressional oversight in the Iran-Contra scandal, and simply because, like any bureaucratic exercise, these processes were an evolutionary art form.

  President Carter was the first to institute an official, specific, standardized process to approve and review covert action programs that required experts to participate at different stages.19 It worked well for Carter, and it worked well for Reagan, so long as it was followed. After Iran-Contra, which was of course deliberately not subjected to the approval and review process (had it been, there would have been no scandal in the first place), Reagan’s process was amended to exclude the National Security Council (NSC) and its staff from engaging in covert action programs (a statute later codified in the 1991 Intelligence Authorization Act). This revision was adopted part and parcel by George H.W. Bush, although the names of the various participating components were altered. Bill Clinton next modified the process slightly, bringing in officers at the GS-15/full colonel rank for a first cut at proposed programs. Since the Reagan years, the covert action approval and review processes have been such that (a) there is no possibility of a “rogue” operation by the CIA and (b) lawyers are present at every stage to ensure that constitutional requirements, federal statutes, executive orders, and internal Agency regulations are fully complied with. Critics who continue to accuse the Agency of running unauthorized operations or Agency officers of ignoring the Constitution and the law are either functioning on information that is more than a quarter-century out-of-date or deliberately ignoring the truth to pursue their own agenda.

  APPROVAL AND REVIEW IN THE

  REAGAN/BUS
H ERA

  Once in office President Reagan promulgated a formal process governing the approval of new covert action programs and established an annual review for active programs. In response, senior CIA management as well as the Directorate of Operations established their own separate approval and review procedures. The intent was to ensure that all covert action programs reaching the president’s desk for approval or renewal had been thoroughly reviewed by staff for policy congruence, operational effectiveness and security, interagency coordination, legality, and cost.

  At the White House, a committee called the Planning and Coordination Group (PCG), which was composed of high-level representatives (often the deputies) from the Departments of State and Defense and other relevant agencies, was to review all covert action programs current and proposed. Once a proposed program had navigated the PCG, it was passed on to the National Security Planning Group (NSPG), which was essentially the statutory members of the National Security Council augmented by the heads (or their delegates) of other agencies having a stake in the program. A revision of this process was implemented on January 18, 1985, in National Security Decision Directive (NSDD)-159, Covert Action Policy Approval and Coordination Procedures.20 The approval and review process was again amended after Iran-Contra on October 15, 1987, in NSDD-286, Approval and Review of Special Activities, the most important element of which was the prohibition against the NSC staff executing covert action operations. NSDD-286 proved so effective that Presidents Bush and Clinton retained it without substantive revision, save that the PCG became the “Deputies Committee” and the NSPG became the “Principals Committee,” to reflect the status of the members in their respective agencies.