APPROVAL AND REVIEW IN THE
CLINTON ADMINISTRATION
The procedure in place during the Clinton years for approval and review of covert action programs (and which was still essentially in effect in the George W. Bush administration at the end of 2002) was straightforward and composed of checks and balances at multiple levels.21 First, the White House (i.e., the president or the national security advisor) transmitted to the CIA a directive to generate proposals for a possible covert action program. Only the president or the national security advisor could task the CIA to originate covert action planning, although any executive agency with foreign policy or national security responsibilities—excluding the CIA—was able to recommend this option to the NSC.22 That the tasking for modern covert action programs arises in the White House and not at CIA headquarters is a concept that to this day is still egregiously misunderstood by observers and denied by critics.
Indeed, even recent literature still places the onus for originating covert action programs on the Agency. For example, a report of a blue ribbon panel on covert action published by the Twentieth Century Fund in 1991 states that “CIA officers, not politically appointed officials or zealots in the White House, propose the bulk of covert action operations.” The source for the panel’s determination was the 1976 Church Committee report. Apparently no one on the panel considered that something might have changed in a decade and a half or felt compelled to question the Church Committee report’s continuing validity. Other examples of this misconception abound in materials published as recently as 2000.23
Not only do covert action proposals originate in the White House; ideally, there should also be a comprehensive overt policy in existence in which to integrate a complementary covert element. Too, White House policymakers should have sufficient knowledge of covert action capabilities for their request to the CIA to contain at least fairly specific guidance. Les Aspin, a former congressman and Clinton’s first secretary of defense, suggested specific questions for the president to consider before “buying into” a proposed covert action program. First, is the proposal based on sound intelligence, which presumably would be multiple-source and cross-checked? Second, is the proposal in “harmony” with established public policy? Perhaps the clearest example of covert action running contrary to publicly articulated policy was the Nixon administration’s covert program in Chile. (Of course Iran-Contra was also completely at odds with established policies that prohibited negotiations for hostages and enacted the arms embargo against Iran.) Third, is the proposal merely “social engineering” rather than a viable foreign policy? Fourth, is the plan a hastily concocted response to some international crisis? And finally, are the intelligence folks “trying to run a war,” something that perhaps should be left to military professionals? These are all valid issues for the president and his advisors to consider, and one assumes that Aspin worked to focus the White House on these concerns, although obviously without complete success.24
Often a Clinton request for a covert action program or, more frequently, a menu of covert action options to substitute for a policy—manifestly a poor utilization of covert action—would be communicated to CIA headquarters at Langley. Upon arrival at headquarters, the request would then be forwarded to the operations component—an area division (e.g., Near East or Latin America) or “issue” component (e.g., the Counternarcotics or Counterterrorism Centers)—that would have responsibility for managing the program. Appropriate officers from within the component, including a lawyer detailed specifically to that component on a full-time basis by the Agency’s Office of General Counsel (OGC), would begin to work up possible options based on considerations and analysis of operational possibilities; resource availability, including personnel, funds, and assets from the covert action infrastructure; prospect of success; security and odds of public compromise; risks versus gains and costs versus benefits; whether and/or which foreign intelligence services could or should be involved; the need to acquire operational support from the Defense Department or other agency; and any legal issues that might pertain to the execution of the program. (In the risk-versus-gain category, danger to human life and damage to U.S. interests should the program become known are fully discussed. The latter does not encompass domestic political risks to the president, for that is the province of his White House policy advisors; it is, rather, a calculation of potential damage to U.S. interests in the target country or region should the operations become public knowledge.) Finally, once a set of covert action options had been compiled, all station chiefs in countries potentially affected by the program would be notified and their comments incorporated into the planning process.
Once the operational and supporting details were worked out, either a complete plan or a series of options were pulled together into one cogent proposal, which included a draft Presidential Finding. At that point a Covert Action Planning Group (CAPG) would be convened under the chairmanship of the deputy or associate deputy director for operations (DDO or ADDO).25 Present were the component chief and the operations officer responsible for program management and representatives from the DCI Counterintelligence Center (CIC); the Operations and Resources Management Staff (ORMS), an operational oversight and budget planning component; the Special Activities Division (SA), which maintains the covert action infrastructure plus a cadre of covert action specialists; and any other potentially affected component. (For example, discussion of a counterterrorism or counternarcotics program that is to take place within a specific geographic region would find issue officers present as well as an officer from the appropriate area division to ensure that his/her component’s equities are protected.) As within the individual operational components, the Office of General Counsel would assign an attorney to serve as the DO’s legal advisor, who would play an active role in the meeting. The CAPG would then review in detail program goals, operational methodology, required assets (human and technical), costs, risks, compatibility with overt policy, chances for success, operational security, and consequences of blowback if compromised. It was not uncommon for the initial proposal to require amending once all the participants had contributed their knowledge and perspective.
Once a proposal received the blessing at the directorate level, the next step was a thorough scrub at the Agency level by the Covert Action Review Group (CARG).26 Chaired by the Agency’s third senior officer, the executive director, this group was established by Robert M. Gates during his tenure as deputy director of central intelligence (DDCI) in 1986 in the wake of Iran-Contra to provide coordinated advice to the DCI and DDCI on all aspects of proposed Findings and amendments to existing Findings (MON). In addition to the executive director, CARG membership consisted of the four deputy directors (Operations, Intelligence, Administration, and Science and Technology), the comptroller, the general counsel, the head of congressional affairs, and the chief of the Special Activities Division. The issues reviewed at the CARG were the same as those at the CAPG, with several significant additions: potential reaction from Congress was often on the agenda, both in terms of overall approval and with respect to funding issues; legal concerns, while discussed at the CAPG, were reviewed in more full detail; and needed support from the other directorates was hashed out. The result was a review that was at once wide-ranging and highly detailed, and as at CAPG, it was common for the CARG to meet multiple times before attaining consensus on the proposed program and Finding. With CARG concurrence, including a final approval by the general counsel with respect to legal issues, the presidential proposal was then passed up to the DDCI or DCI for transmittal to the White House.
It is essential to emphasize that there was substantive involvement by CIA lawyers at every stage of the covert action planning process—from the initial discussions of program development within the operational component, through the Directorate of Operations scrutiny, up to the approval at the most senior level of the Agency. Although one intelligence scholar asserts that while the DCI “has a sizable staff of lawyers, it is
doubtful that he is truly kept informed about the more sensitive intelligence operations,” this is an egregious inaccuracy, for the more sensitive the operation is, the more knowledgeable is the DCI.27 Just as important, working-level operations officers and mid-level managers seek guidance, formally and informally, from these lawyers at all stages of covert action program development and execution.
With the arrival of the CIA’s proposals at the Clinton White House, there began yet another multilayered review process for the proposed program incorporating all affected elements of the foreign policy community. The initial level was the Interagency Working Group for Covert Action (IWG), which had the responsibility of reviewing policy objectives, program risks, and legality, while ensuring interagency concurrence, coordination, and cooperation. As required in NSDD-286, as many as thirteen different executive branch agencies participated in this interagency process. Always present at the table were the NSC’s director of intelligence programs (chair) and representatives from the Department of State, the Office of the Secretary of Defense, the Joint Chiefs of Staff, the Office of Management and Budget, the CIA, and the Justice Department. Others attended if the program fell within their domain—a representative from the Drug Enforcement Agency, for example, for a counternarcotics program. Although CIA officials consult with counterparts in the other agencies while developing the operational proposals, not every conflict or problem can be foreseen. Thus, it was at the IWG that conflicts were resolved. Multiple meetings were usually required before the NSC intelligence director was satisfied. And always present was the NSC’s lawyer, who inevitably played a large and active role in the debates.
The State Department played a major role in the IWG, with representatives from the Bureau of Intelligence and Research (INR) as well as the geographical area bureau(s) having cognizance over the countries in which the program was to occur. Beforehand, as part of the State Department’s own internal process, the views of the affected overseas ambassadors were also solicited for presentation to the IWG. If the program involved propaganda, the CIA-State Department joint thematic guidance, reflective of the president’s policy positions, was reviewed to ensure the CIA’s overseas agents knew the party line.
From the IWG (which might have met multiple times to discuss the program), the proposed covert action program and draft Finding moved up to the Deputies Committee, a grouping of the number-two officials in each of the relevant agencies (deputy secretary of state, deputy secretary of defense, vice-chairman of the Joint Chiefs, deputy attorney general, etc.), which was chaired by the deputy national security advisor. Again, program objectives and their relationship to policy goals were scrutinized, as were legalities, congressional reaction, consequences of program compromise, and—for the first time—domestic political considerations. Political considerations could involve the president’s relationship with Congress, his standing in popularity polls, results of other polls indicating preferences or positions of the voting public, the distance from or nearness to national elections, and pressures from various groups representing American citizens who have close ethnic connections to foreign countries (e.g., Greek-Americans or Polish-Americans). The final step was the Principals Committee, chaired by the national security advisor and composed of the heads of the relevant agencies (e.g., secretary of state, secretary of defense, chairman of the Joint Chiefs, attorney general, etc.), who added their own particular perspectives to the mix.
Once the proposed program and draft Finding navigated the rocks and shoals of these intensive and extensive reviews, the president would then sign the Finding for transmittal to Congress within the forty-eight-hour limit.28 And the CIA would set forth on yet another mission. Of equal importance, the same process was utilized for an annual review of all existing covert action programs.
CONGRESSIONAL OVERSIGHT
Regardless of who is president, and separate from the procedures in the executive branch agencies, there was and still is an intense congressional scrutiny of covert action programs. Each spring both HPSCI and SSCI conduct an annual review of these programs, in which all facets are reviewed and critiqued. Then, throughout the year, congressional staff from the oversight committees and the appropriations committees hold quarterly reviews of the programs similar in scope to the annual review. Finally, members of Congress and/or their staff can call the Agency and “request” a briefing or update on any program at any time. These requests, which number literally in the hundreds every year, are met expeditiously by Agency personnel and result in the desired meetings, usually within forty-eight hours. Thus, key members of Congress and staff are kept au courant with each and every program, in detail and in a timely fashion.
Indeed, because (as mentioned above) intelligence officers working the programs change assignments frequently while congressional staff members may remain in their positions for years, it is common for the staff to be much more familiar with the programs than the officers working them. This at times can be an embarrassment to the Agency. By way of example, one might see a newly assigned program manager asking for an additional X hundred thousand dollars for something, and a veteran staffer then asking what happened to Y hundred thousand dollars that was given to the program Z years ago to meet the same need. Yet the new program manager would have no knowledge of the previous request nor of the disposition of the funds that were provided to meet the need.
Agency officers new to dealing with Congress usually begin by assuming that oversight committee staff know little and are unnecessary hindrances, if not deliberate antagonists. Staff briefings, once the bane of clandestine operators, are now seen by the wiser officers as positive measures. The intelligence officers soon learn that staff members are exceptionally knowledgeable, both about the program and about operational difficulties involved in running it; far more often than not the staff are interested in seeing good, well-managed programs succeed. The support for these covert programs from staff and legislators alike allows program managers to feel able to speak more freely about the operations, raise problems more directly, and solicit assistance as needed. And when staff (especially) as well as congressional members are knowledgeable about the programs, they are able to see possibilities for helpful legislative initiatives that program managers might not. Indeed, it is not uncommon in popular covert action programs for Congress to try to push the Agency to do more than has been authorized in the Finding or to proffer more funding than the program can use.
There is one additional benefit to congressional awareness of these programs. In case of a compromise or operational catastrophe, the staff and members will have a realistic knowledge of the risks involved and potential problems. If disaster strikes, they are neither surprised by the downturn nor automatically inclined to assume the cause was incompetence or negligence. If nothing else, this may save the Agency from unearned negative press pronouncements by some in Congress, against which the program mangers are unable publicly to defend themselves.
THE FINDING FORMAT
Findings, usually drafted in the operational component of the CIA that will manage the covert action program, are actually two separate documents: the surprisingly brief Finding per se, and a detailed supporting document. Findings must be placed in writing, signed by the president, and reported to the intelligence committees of Congress within forty-eight hours unless exceptional circumstances prevail. Findings may not be signed retroactively. While the president and Congress may have different definitions of “exceptional circumstances,” there is a classic example from the Carter years that yields something of a guide. During the capture of the American Embassy in Tehran, Iran, in 1979, six embassy staff members were able to evade the captors and find refuge in the residence of the Canadian ambassador. In collusion with the Canadians, an elaborate covert action plan for their escape from Iran was devised. But as a desideratum for their cooperation the Canadian government, afraid of leaks that would endanger their own personnel in Tehran, forbade the president to notify Congress of the planned operation.
President Carter agreed, and it wasn’t until the six Americans were out of Iran that Congress was informed; Congress quickly agreed that this was a worthy exception to the rule.
The Finding always begins with the statement that the president “finds” this covert action program to be in the national interest—and then proceeds to state precisely the foreign policy objective(s) to be achieved. It also specifically and plainly assigns the CIA to conduct the necessary operations. If the president were ever to give a covert action program to another agency (e.g., the Department of Defense), this is where the authorization would be granted. Subsequent paragraphs include the “Scope,” naming the country, region, or issue for which the Finding is approved; and the “Description,” a statement of policy objectives accompanied by a very general overview of operational goals and methodologies. This document is rarely more than two pages in length, and often less.29
It is in the supporting document that one finds the details. There are four major sections of this document. “Policy Objectives” states precisely the foreign policy objective(s) to be achieved and again specifically authorizes the CIA to conduct the requisite operations. The “Plan of Action” provides the details, reach, and limits of the CIA’s methodology. The “Risk Assessment” section provides just that, the combined agencies’ best estimation of what might go wrong and the impact of compromise. If there is a possibility that the operations entail a risk to human life, even accidentally, or that such is a reasonable by-product (e.g., from a paramilitary operation), then the document is defined as a “Lethal Finding,” and this characteristic is made clear in its transmittal to Congress. The final section details the “Resources Required.” Depending on the program, this supporting document may be only a few pages, or sometimes much longer. The supporting document must explicitly state whether DoD support, or the assistance of a third party country, is required for the program.
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